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ELCDismissedMeru ELC Constitution Petition (Notice of Motion dated 1/5/2019, filed 2.5.2019)· [2020] KEELC 3651 (KLR)

Eustace Kathuku v County Government of Meru [2020] KEELC 3651 (KLR)

Environment and Land Court
12 February 2020
LMLucy N. Mbugua
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court refused to stop the demolition of a building that encroached on a public road, ruling that public interest outweighs private property claims.

What this practically means

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Executive summary

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The petitioner brought a Notice of Motion dated 1/5/2019 under Article 40 of the Constitution seeking conservatory orders to restrain the County Government of Meru from demolishing developments on plot No. 26B Laare Township and from interfering with his use and occupation, plus a notice of penal consequences against the Governor, County Secretary and Director of Physical Planning. He claimed he bought the fully developed plot in 1969, that it was later subdivided with plot 26B transferred to him, that he had paid rates to the former Nyambene County Council and the County Government, and that the alleged public road did not exist when his plot was surveyed and developed. The respondent, through the county physical planner, opposed, asserting the suit plot encroached on an access road to the Igembe North CDF office and that only the encroaching feet of the building, not the entire structure, were marked for demolition; road works had stalled due to the stay orders. The court had earlier granted injunction orders and directed a scene visit by the Executive Officer with joint expert reports, but the petitioner frustrated the exercise, which the Executive Officer could not conduct in his absence. The physical planner filed a report showing encroachment, which the petitioner called partisan. The court held that with no explanation for snubbing the scene visit, the petitioner could not impugn the report and had not met the criteria for conservatory orders. Applying Gatirau Peter Munya on the public-law character of conservatory orders and the KeNHA authority on road reserve encroachment, the court dismissed the application with costs to the respondents and discharged all injunction and stay orders.

Key legal issues

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01

Whether conservatory orders should issue restraining demolition of structures encroaching on a public road

Holding

No; the applicant failed to meet the criteria for conservatory orders and the encroachment on a public road of access engages the public interest

Reasoning

The court ordered a scene visit with the Executive Officer and joint expert reports, but the applicant frustrated and snubbed the exercise without explanation. He therefore could not challenge the physical planner's report as partisan. The report showed encroachment on the access road hindering road construction. Applying the public-law character of conservatory orders and the Court of Appeal's guidance in the KeNHA case, public interest prevailed over the individual's private interest.

p. 2
02

Weight to attach to the physical planner's report

Holding

The report stands; the applicant could not fault it as partisan after snubbing the scene visit without explanation

Reasoning

The court directed a scene visit by the Executive Officer in the presence of the parties and experts. The respondent's counsel reported that the petitioner had frustrated the exercise, and the Executive Officer could not conduct it in the petitioner's absence. The physical planner proceeded and filed a report accounting for the extent of encroachment. With no reasonable explanation for the snub, the allegation of partisanship failed.

p. 2

Legal principles established

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  • Conservatory orders are granted on the inherent merit of the case bearing in mind the public interest and constitutional values, not on private-law injunction criteria
  • A public body mandated to build and protect public roads should not be hindered by injunction granted to private citizens who have encroached on a road reserve; compensation in damages is an adequate remedy

Court orders

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  1. 1.The application filed on 2.5.2019 is dismissed with costs to the Respondents
  2. 2.Any orders of injunction or stay granted herein are discharged

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (3)

  • Hellen Muthoni Kabengi & 20 others Vs County Government of Isiolo & 4 others
    Meru E.L.C Constitution Petition no. 12 of 2019
  • Gatirau Peter Munya Vs Dickson Mwenda Kithinji & Another
    Supreme Court Petition No. 2B of 2014; [2014] eKLR
  • Joseph Wainaina Kinyanjui & another v Kenya National Highways Authority
    [2018] eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya and all other enabling provisions of the law

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, "Eustace Kathuku v County Government of Meru [2020] KEELC 3651 (KLR)", Case Analysis (2020). Meru ELC Constitution Petition (Notice of Motion dated 1/5/2019, filed 2.5.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3651/eng@2020-02-12

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