Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 28.1.2019 (Cheptiret Ward Administration Offices petition)· [2019] KEELC 4337 (KLR)

Kimutai Kirui v County Government of Uasin Gishu & 2 others [2019] KEELC 4337 (KLR)

Environment and Land Court
1 March 2019
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court halted construction of a Sh100 million ward office project because the county government failed to consult the public or involve the National Land Commission.

What this practically means

#

Executive summary

#
Kimutai Kirui petitioned on his own behalf and for members of the public against the County Government of Uasin Gishu, the Attorney General and a third respondent, challenging the designation and construction of ward administration offices on Nariri (Cheptiret Trading Centre Plot No. 3, Land Parcels No. 7728/1 and L.R. No. 3655), which he described as public land designated as an open space used for recreation, barazas, rallies and crusades. He alleged construction began in January 2019 without public participation as required by Articles 1, 10 and 20, without involvement of the National Land Commission under Article 67(2)(a) and the Land Act 2012, and in breach of Articles 35, 40, 42, 47, 55, 57, 69(1) and 186. His notice of motion dated 28.1.2019 sought conservatory orders restraining construction and interference with public access. The respondents relied on a withdrawn civil suit, claimed public consultations of 11.5.2018 and a Kshs.100,650,375 construction contract, and argued the petition failed the Anarita Njeru threshold. The court applied the Mrao prima facie test, found no indication the public was invited to consultation, noted a discrepancy between minutes dated 11.5.2018 and an attendance list dated 11.5.2015, and held the failure to involve the National Land Commission raised a triable constitutional issue. Finding irreparable injury not compensable in damages and the balance of convenience and public interest favouring the petitioner, the court stopped any further construction on the suit property until the petition is heard and determined, with no order as to costs as a public interest matter.

Key legal issues

#
01

Prima facie case for conservatory orders

Holding

The petitioner established a prima facie case with likelihood of success, applying the Mrao test

Reasoning

Applying the Mrao definition of a prima facie case, the court found an apparently infringed right: there was no indication the public was invited to consultation, and a discrepancy existed between minutes dated 11.5.2018 and an attendance list dated 11.5.2015. The land's intended use (recreation versus office blocks) also raised arguable issues for the petition.

p. 3
02

Public participation

Holding

Failure to demonstrate genuine public participation offends Article 10

Reasoning

Article 10 binds all State organs when implementing public policy decisions and includes participation of the people. The respondents' minutes showed a date discrepancy with the attendance list, and there was no evidence of media invitation or venue within Cheptiret Centre, undermining the claim that consultation occurred before construction.

p. 3
03

Involvement of the National Land Commission

Holding

Failure to involve the NLC in setting public land apart raised a prima facie case

Reasoning

The suit property is public land which the county holds in trust. Article 67(2) assigns the NLC the function to manage public land on behalf of national and county governments. The court held that excluding the NLC from the decision to construct the administration block supports the petitioner's case pending full hearing.

p. 3
04

Irreparable injury and balance of convenience

Holding

Both parties face losses not compensable in damages; public interest favours the petitioner

Reasoning

The petitioner would suffer irreparable injury if construction proceeded and he later succeeded, being unable to be compensated in damages; conversely the government risks loss of the Kshs.100,650,375 contract. The balance of convenience tilts to the petitioner, who used the land for recreation, crusades and barazas before eviction.

p. 3

Legal principles established

#
  • Public participation under Article 10 is a paramount norm before administrative action affecting the people is taken
  • The National Land Commission must be involved in the management and setting apart of public land
  • Public interest and constitutional issues outweigh the monetary cost of halting a public project

Court orders

#
  1. 1.Any further construction on the suit property be stopped until the petition is heard and determined
  2. 2.No order as to costs, this being a public interest matter

Authorities

#

Legislation

  • Constitution of Kenya, 2010Fourth Schedule Part 2(7)
  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Articles 10 and 20
  • Constitution of Kenya, 2010Article 10(1), (2)(a)-(d)
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Articles 55 and 57
  • Constitution of Kenya, 2010Article 67(2)(a) / Section 67
  • Constitution of Kenya, 2010Article 69(1)
  • Constitution of Kenya, 2010Article 186
  • Land Act, 2012not specified

Cases cited (2)

  • Anarita Karimis Njeru vs the Republic of Kenya
    (1976 -1980) KLR 1272
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Articles 1, 10, 20, 35, 40, 42, 47, 55, 57, 67 and 69 of the Constitution of Kenya, 2010; Fourth Schedule Part 2(7)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimutai Kirui v County Government of Uasin Gishu & 2 others [2019] KEELC 4337 (KLR)", Case Analysis (2019). Petition dated 28.1.2019 (Cheptiret Ward Administration Offices petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4337/eng@2019-03-01

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