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ELCAllowedPetition dated 9th June 2020· [2021] KEELC 1238 (KLR)

Evans Erustus Menge Orina v County Government of Nyamira & another [2021] KEELC 1238 (KLR)

Environment and Land Court
27 October 2021
1,372 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 stopped Nyamira County from demolishing a landowner's property until his constitutional case is fully heard.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion filed alongside a constitutional Petition dated 9th June 2020, in which the Petitioner, the registered proprietor of LR. No. West Mugirango/Siamani/4068 and LR. No. West Mugirango/Siamani/6524, sought conservatory orders restraining the Respondents from trespassing on, demolishing or interfering with his properties pending the hearing of the Petition. He alleged the Respondents were demolishing private property in Nyamira town to open a new access road without compensation, public participation or compliance with compulsory acquisition procedures, and that the properties were not reserved for the road. The Respondents, through a Replying Affidavit of Zablon Onchiri, CECM for Roads, Transport and Public Works, denied the allegations as speculative, asserting that the properties encroached on a road reserve identified from the 1973 Master Plan and 1996 Development Plan, and that affected persons had been notified. The court framed one issue: whether the Applicant met the threshold for conservatory orders. Applying CREAW and Kenya Association of Manufacturers, the court found a prima facie case with likelihood of success: the Applicant demonstrated registration, occupation and threatened demolition, raising arguable constitutional issues under Articles 20 through 48, notably protection of property. The Respondents' road-reserve claim was unsupported by evidence and reserved for the substantive hearing. The court allowed the application, issuing a conservatory order restraining the Respondents and directing that costs be in the cause.

Key legal issues

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01

Whether the Applicant met the threshold for grant of conservatory orders

Holding

The Applicant established a prima facie case with likelihood of success and a real danger of irreparable interference with his registered properties; the application was allowed.

Reasoning

The Applicant produced documentary and photographic evidence of occupation and registration of the suit properties, and the Respondents acknowledged the structures. His assertion of threatened demolitions engaged arguable constitutional issues under Articles 40 and related provisions. The Respondents' claim that the properties fell on a road reserve was unsupported by evidence and was a substantive matter for the full hearing.

p. 2
02

Whether the Respondents' allegation that the suit properties encroach on a road reserve defeats the application

Holding

No; the allegation was unsupported by any evidence and was reserved for determination at the hearing of the Petition.

Reasoning

The 2nd Respondent asserted that the properties encroached on the road reserve per the Physical Planning Act and a 1973 Master Plan, but filed no supporting evidence. The court held such contested factual questions are substantive issues to be resolved at the hearing of the Petition, not on an interlocutory conservatory application.

p. 2

Legal principles established

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  • A party seeking a conservatory order must demonstrate a prima facie case with likelihood of success and that failure to grant the order would result in real danger of prejudice from the violation or threatened violation of the Constitution.
  • On an application for conservatory orders, the court makes no definite findings of fact or law but only evaluates whether a prima facie case and prejudice are shown.
  • A prima facie case need not be a case that must succeed, but it must not be frivolous; it must disclose arguable issues and, in rights cases, arguable constitutional issues.

Court orders

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  1. 1.A conservatory order restraining the Respondents, their agents, servants, employees and/or officers from trespassing on, carrying out demolitions or excavations and/or any other manner interfering with the Applicant's use and occupation of LR. NO. WEST MUGIRANGO/SIAMANI/4068 and LR. NO. WEST MUGIRANGO/SIAMANI/6524
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Physical Planning Act
  • Constitution of Kenya, 2010Articles 20, 21, 22, 23, 27, 28, 29, 31, 39, 40, 47 and 48

Cases cited (2)

  • Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary-Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
Jurisdiction invoked
Articles 20, 21, 22, 23, 27, 28, 29, 31, 39, 40, 47 and 48 of the Constitution (conservatory relief in a constitutional 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, "Evans Erustus Menge Orina v County Government of Nyamira & another [2021] KEELC 1238 (KLR)", Case Analysis (2021). Petition dated 9th June 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1238/eng@2021-10-27

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