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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 3561 (KLR)
Ben O Okwengu & 7 others (Suing for themselves and on behalf of the entire Nyalenda A, B and Pandpieri Community)v Kenya Prison Service & 2 others [2021] KEELC 3561 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court let Kisumu Medium Prison fence its land, but only the 38 unsettled acres, protecting villagers' 26-acre settlement until trial.
What this practically means
#Executive summary
#This is an interlocutory ruling of the Environment and Land Court at Kisumu delivered by Antony Ombwayo J on 22 April 2021 by electronic mail pursuant to COVID-19 directives. The Attorney General, on behalf of the 1st Defendant (Kisumu Medium Prison), applied to be allowed to fence the suit property. The application was grounded on urgency: exchequer funds allocated for constructing a perimeter fence would lapse at the close of the 2020/2021 financial year and would be futile to access thereafter; the prison had begun rehabilitating the parcel by planting vegetables for inmates' rations, but alleged unabated invasion, trespass, theft of farm produce and cattle grazing by local villagers causing losses. The Plaintiffs, through Ben O. Okwengu, opposed, contending the orders would amount to constructive dismissal of the suit, a declaration that the land belongs to the defendants, and support for trespass. The court noted the parties' consent of 26th October 2020 to maintain the status quo but held the case to be of utmost public interest. It ordered the matter be reviewed for hearing on a daily basis from 12th July 2021 and, pending the hearing and determination of the suit, allowed the 1st Defendant to fence only the areas not inhabited by the plaintiffs. The fencing was expressly not to amount to eviction of any party or demolition of any structure, was to exclude the 26 acres of settlement areas, and was restricted to the 38 unsettled acres comprising farms and grazing grounds. Liberty to apply was granted. No costs order appears.
Key legal issues
#01
Whether the status quo consent of 26th October 2020 should be varied to allow the 1st Defendant to fence the suit property
Holding
The court allowed fencing but confined it to the unsettled 38 acres, protecting the plaintiffs' 26-acre settlement from eviction or demolition
Reasoning
The court characterized the case as one of utmost public interest. Balancing the Applicant's urgency (expiring exchequer funds for fencing, ongoing trespass, theft and grazing) against the Plaintiffs' fear that fencing would constructively dismiss the suit and support trespass, the court crafted a limited order preserving both parties' positions pending full hearing on a daily basis.
p. 2
Legal principles established
#- A court may vary a status quo consent to permit limited interim works where justice and public interest demand, provided no party is evicted or dispossessed
Court orders
#- 1.That in the interest of justice the matter be reviewed for hearing on a daily basis from the 12th of July 2021
- 2.That pending the hearing and determination of the suit, the 1st Defendant be allowed to fence the areas not inhabited by the plaintiffs
- 3.That the fencing should not amount to eviction of any party or demolition of any structure
- 4.That the fencing should not affect the settlement areas which amount to 26 acres but should be restricted to the 38 unsettled acres that is farms and grazing grounds
- 5.That there be liberty to apply
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property; interim relief sought pending hearing and determination of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ben O Okwengu & 7 others (Suing for themselves and on behalf of the entire Nyalenda A, B and Pandpieri Community)v Kenya Prison Service & 2 others [2021] KEELC 3561 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3561/eng@2021-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.