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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 2129 (KLR)

Mohammed Juma & 5 others v Kenya Rural Roads Authority & 5 others [2021] KEELC 2129 (KLR)

High Court of Kenya
31 August 2021
2,192 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

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A Kenyan court halted road construction for 21 days because landowners weren't properly notified of a survey affecting their property.

What this practically means

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Executive summary

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The Applicants, registered owners of land parcels EKERO/1590, S.WANGA/EKERO/1587 and S.WANGA/EKETO/1588, moved the High Court at Busia seeking temporary and prohibitory injunctions restraining construction of a section of the Mumias-Musanda Road (point 0+323M to 0+605M) bordering their land. They alleged the Respondents varied the road plan from the survey of 11th March 2021 to favour the local area Chief, creating a dangerous blind corner and encroaching on their private land without notice, in breach of their rights to property and fair administrative action. The Respondents, through replying affidavits of the 4th Respondent and of Engineer John C. Cherongony for the 2nd Respondent, maintained that due process was followed; a County Surveyor's report found the Petitioners had encroached approximately 9 metres over a length of 280 metres onto the road corridor, a report adopted at a public demarcation meeting. They warned that halting construction would cause losses of hundreds of millions of shillings and that Article 40(6) does not protect unlawfully acquired property. The court held that the Petitioners' claim of inadequate notice for the survey demonstrated a prima facie case based on denial of fair administrative action. It granted a temporary injunction limited to 21 days, ordered a repeat survey on 13th September 2021 by the County Land Registrar, County Land Surveyor and Head of GIS Section, with the Petitioners free to attend with surveyors of their choice at their own cost, and directed that the matter be placed before the ELC Judge at Kakamega on 16th September 2021 for directions. The alleged dangerous blind corner was left for trial.

Key legal issues

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01

Whether the Petitioners established a prima facie case for a temporary injunction

Holding

The court found a prima facie case founded on the alleged denial of fair administrative action, given the allegedly inadequate notice of the survey exercise, and granted a limited 21-day injunction to allow a repeat survey.

Reasoning

The Respondents produced a survey report showing a 9-metre encroachment onto the road corridor, but the Petitioners contended they were not given adequate notice to engage a surveyor of their choice. The court reasoned that the alleged breach of the right to fair administrative action under Article 47 sufficed, at the interlocutory stage, to ground a prima facie case, justifying a brief suspension of construction pending an independent repeat survey rather than a full adjudication.

p. 3
02

Whether the road design creates a dangerous blind corner

Holding

The court declined to determine this question on the application, deferring it to the trial court.

Reasoning

The Petitioners argued the realigned road created a dangerous blind corner endangering schoolchildren, while the Respondents' affidavits denied this. The court held that determining safety required extensive hearings with evidence from the parties, which could not be resolved on affidavit material at the interlocutory stage; the issue was therefore left for trial.

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Legal principles established

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  • A denial of the right to fair administrative action can demonstrate a prima facie case for interim injunctive relief.
  • Interim injunctions may be granted for a limited duration to allow an evidentiary exercise (such as a survey) to resolve the dispute.
  • Allegations of danger on a road are matters for trial after extensive hearings, not for summary determination on an interlocutory application.

Court orders

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  1. 1.An order of temporary injunction restraining the 1st, 2nd, 3rd and 4th Respondents, their servants, agents and/or any other person deriving authority from them from proceeding with construction of the section of Mumias-Musanda Road from point 0+323M to 0+605M for a period of 21 days pending a repeat survey exercise and further directions by the ELC Judge Kakamega
  2. 2.The matter be placed before the Judge in Kakamega on 16th September 2021 to confirm whether the survey report is ready and filed and for directions on determination of the application
  3. 3.A repeat survey exercise to be conducted on 13th September 2021 by the County Land Registrar, County Land Surveyor (Kakamega County) and the Head of GIS Section, Lands, Housing and Physical Planning, with the Petitioners attending with surveyors of their choice at their own cost, and the report to be completed and filed within three days of the exercise

Authorities

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Legislation

  • Judicature ActCAP 8, Rule 3(2)
  • Civil Procedure ActSections 1A, 1B, 3A, 78(2), 79
  • Constitution of Kenya 2010Articles 1(1), 2(1)(5), 3, 10, 22(1)(2), 23, 27(1), 28, 40, 40(6), 43(1)(f), 47, 258(2)
  • Environment and Land Court ActSection 13, No. 5 of 2011
Jurisdiction invoked
Articles 22(1), 23 and 258(2) of the Constitution of Kenya 2010; Sections 1A, 1B, 3A, 78(2) and 79 of the Civil Procedure Act; Section 13 of the Environment and Land Court Act No. 5 of 2011; Judicature Act CAP 8 Rule 3(2); High Court Vacation Rules

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, "Mohammed Juma & 5 others v Kenya Rural Roads Authority & 5 others [2021] KEELC 2129 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2129/eng@2021-08-31

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