Mathew Owuor Dim & 6 others v Attorney General & 7 others [2021] KEELC 2343 (KLR)
The bottom line
#The Environment and Land Court paused the Kendu Bay water project, freezing all construction on the disputed land until it hears the residents' full petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the amended notice of motion was properly before the court
The application was properly before the court since it was initiated pursuant to leave of the court given on 16th December 2020, taking into account Articles 48, 25(c), 50(1) and 159(2) of the Constitution
The court found that the omission of a prayer from the e-filed application was an error acknowledged by counsel, who undertook to serve all respondents with the complete application. The 3rd respondent did not object to service of the amended motion. The court exercised its discretion under section 3A of the Civil Procedure Act and Article 159(2) to attain the best ends of justice and found the application properly laid before it.
Whether the application met the threshold for interim preservation orders (temporary injunction and conservatory order)
The applicants met the threshold for interim preservation orders but the court granted a status quo order in lieu of a temporary injunction pending hearing of the petition
The court considered the Giella v Casman Brown test as restated in Mrao and Nguruman. It noted NEMA had prepared a report; the applicants had availed a list of members and survey maps; the 7th respondent had issued a public notice; and the water permit was still being processed. In that scenario, interim preservation orders were merited, though the court settled on maintaining the status quo over the project and the suit parcels pending full hearing.
Whether public participation took place before commencement of the Kendu Bay Town Water Project
This issue was left for determination at the full hearing of the petition
The court noted the applicants' complaint that the respondents did not embrace public participation as required by Articles 10(2)(a) and 232(2) of the Constitution. It observed that while the 7th respondent issued a public notice, issues including participation of the people as raised in the petition come into picture for determination at the hearing, and interim preservation orders were sufficient to preserve the position meanwhile.
Legal principles established
#- The court's duty is to balance the interests of both parties when considering interim relief
- The doctrine of lis pendens is conservatory in nature and is meant to maintain the status quo over a property until the suit is determined
- Section 13(7)(a) of the Environment and Land Court Act, 2015 mandates the court to grant interim preservation orders including interim injunctions and conservatory orders
Court orders
#- 1.The parties in this petition to maintain the obtaining status quo over the project in relation to all the parcels of land enumerated in the petition and in paragraph 8 of the supporting affidavit, until the petition is heard and disposed of
- 2.The respondents shall not make more steps towards the completion of the water project on the said parcels of land pending the hearing and determination of the petition, which is set to be heard on priority
- 3.The petition is transferred to the newly established Homa Bay Environment and Land Court to enhance access to justice
- 4.Pre trial directions on 23rd September 2021 at the Homa Bay Environment and Land Court
- Jurisdiction invoked
- Articles 22(1), 23(3), 48 and 165 of the Constitution; sections 3 and 3A of the Civil Procedure Act (Cap 21); Section 13(7)(a) of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathew Owuor Dim & 6 others v Attorney General & 7 others [2021] KEELC 2343 (KLR)", Case Analysis (2021). Not stated in judgment (Petition with Notice of Motion dated 1st December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2343/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.