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ELCPartially AllowedNot stated in judgment (Petition with Notice of Motion dated 1st December 2020)· [2021] KEELC 2343 (KLR)

Mathew Owuor Dim & 6 others v Attorney General & 7 others [2021] KEELC 2343 (KLR)

Environment and Land Court
29 July 2021
2,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners/applicants moved the court by a notice of motion amended on 18th December 2020, seeking a conservatory order restraining the respondents from digging, excavating or interfering with the flow of River Awach, and a temporary injunction restraining the 5th and 6th respondents from encroaching on land parcels connected to the Kendu Bay Town Water Project, pending hearing of their petition. The applicants complained that the respondents embarked on the project without public participation and without determining compensation, and that diversion of River Awach Kibwon would cause untold suffering. The 3rd, 4th and 7th respondents opposed the application through grounds of opposition and replying affidavits; the 7th respondent explained that a water abstraction permit was still under assessment after a public notice published in April 2020. The court framed two issues: whether the application was properly before it, and whether it met the threshold for the orders sought. Holding that the amended application was mounted pursuant to leave granted on 16th December 2020 in line with Article 159 of the Constitution and section 3A of the Civil Procedure Act, the court found it properly before it. On the merits, applying Giella v Casman Brown and related authority, and exercising its power under section 13(7)(a) of the Environment and Land Court Act, the court found interim preservation orders merited but settled on maintaining the status quo over the project and the suit parcels in lieu of a temporary injunction, restraining further steps towards completion of the project pending the petition. The petition was transferred to the newly established Homa Bay Environment and Land Court, with pre-trial directions set for 23rd September 2021. No costs order was made.

Key legal issues

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01

Whether the amended notice of motion was properly before the court

Holding

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

Reasoning

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.

p. 4
02

Whether the application met the threshold for interim preservation orders (temporary injunction and conservatory order)

Holding

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

Reasoning

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.

p. 4
03

Whether public participation took place before commencement of the Kendu Bay Town Water Project

Holding

This issue was left for determination at the full hearing of the petition

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The petition is transferred to the newly established Homa Bay Environment and Land Court to enhance access to justice
  4. 4.Pre trial directions on 23rd September 2021 at the Homa Bay Environment and Land Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(a)(b)(d)(e); Article 48; Article 25(c); Article 50(1); Article 22(1); Article 23(3); Articles 10(2)(a) and 232(2)
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules, 2010Order 1 Rule 13(1)&(2); Order 4 Rule 1(2)&(3); Order 51 Rule 16
  • Environment and Land Court Act, 2015Section 13(7)(a)
  • Water Act, 2016Section 12(d)
  • Environment Management and Co-ordination Act (EMCA), 1999Section 58
  • Way Leaves Act, Cap 282 Laws of KenyaSection 4(1)

Cases cited (12)

  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Kogo
    (2018) eKLR
  • Jacinta Mururi vs Jane Mwangi and another
    (2006)
  • Oraro vs Mbaja
    (2005) 1 KLR 142
  • Reliance Bank Ltd vs Norlake Investments Ltd
    (2002) 1EA 227
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jivraj Shah
    (2015) eKLR
  • Giella vs Casman Brown & Company Ltd
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Bob and Ursulla Brenneisen & 7 others v Shanzu Water Front Limited
    [2016] eKLR
  • B vs Attorney General
    (2008) 1 KLR (G & F) 535
  • Ogada v Mollin
    (2009) KLR 620
  • Musa Angira Angira v ICDC
    (2015) eKLR
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

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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, "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.