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ELCDismissedPetition (Nairobi), Notice of Motion dated 10th July 2019· [2019] KEELC 1473 (KLR)

Okiya Omtatah Okoiti & 3 others v Ministry of Lands and Physical Planning & 4 others; Harunani & Associates (Interested Party) [2019] KEELC 1473 (KLR)

Environment and Land Court
30 August 2019
EOE.O. Obaga
1,477 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to halt government projects on gazetted Kiambu grazing land because the landowners could not prove their parcels were actually within it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Obaga J) disposed of a Notice of Motion dated 10th July 2019 filed by petitioners in a constitutional petition. The petitioners, described as public-spirited individuals and Ndeiya land owners, sought conservatory orders halting all government development projects on land gazetted as "Kiambu Western Grazing Area" and an interim order compelling the interested party, Harunani and Associates, to deposit certified copies of original scheme plan subdivision maps for four schemes in Ndeiya, Kiambu County. The petition underpinning the motion sought quashing of the reference in Gazette Notice No. 12526 of 22nd December 2017 to 146.8878 hectares as grazing area, a fresh gazette notice, release of subdivision maps to the Survey of Kenya, and compensation for persons affected by SGR Phase 2A. The respondents and the interested party opposed, contending the applicants had not shown their parcels fell within the gazetted land nor demonstrated any rights violation. The sole issue was whether the applicants had a prima facie case warranting conservatory orders. Applying the CREW v Attorney General test, the court held that the applicants had not demonstrated that their parcels fell within the gazetted land, and that since their concern was compensation, they would be compensated even if projects proceeded, so there was no real danger of prejudice. The application was dismissed with costs to the 1st, 2nd, 4th and 5th respondents and the interested party.

Key legal issues

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01

Whether the applicants established a prima facie case for conservatory orders

Holding

The applicants did not; they failed to show that their parcels fall within the gazetted Kiambu Western Grazing Area and failed to show real danger of prejudice

Reasoning

The applicants claimed their private titled land was wrongly described in a Gazette Notice as Kiambu Western Grazing Area and that development projects were proceeding uncompensated. However, they produced no evidence mapping their parcels onto the gazetted area. Further, the maps they sought had been surrendered to the county government, and their main concern was compensation, which they would receive even if projects proceeded.

p. 3

Legal principles established

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  • A party seeking a conservatory order must demonstrate a prima facie case with likelihood of success and real danger of prejudice from violation of the Constitution

Court orders

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  1. 1.The Notice of Motion dated 10th July 2019 is dismissed with costs to the 1st, 2nd, 4th and 5th respondents and the interested party

Authorities

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Cases cited (1)

  • Centre of Rights Education and Awareness (CREW) & 7 Others -vs- Attorney General
    Petition No. 16 of 2011
Jurisdiction invoked
Constitutional petition (conservatory relief pending determination of the petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okiya Omtatah Okoiti & 3 others v Ministry of Lands and Physical Planning & 4 others; Harunani & Associates (Interested Party) [2019] KEELC 1473 (KLR)", Case Analysis (2019). Petition (Nairobi), Notice of Motion dated 10th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1473/eng@2019-08-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.