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ELCPartially Allowed· [2021] KEELC 4687 (KLR)

Prisca Aluoch Odongo v National Irrigation Authority & 3 others [2021] KEELC 4687 (KLR)

Environment and Land Court (High Court) of Kenya
20 January 2021
4,049 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Migori court fast-tracked a landowner's petition against a state irrigation project but refused to halt the project or order interim compensation before full hearing.

What this practically means

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Executive summary

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The applicant, a resident of Sagama Village in Nyatike Sub-County, Migori County, moved the court by Notice of Motion dated 1st October 2020 in a constitutional petition against the National Irrigation Authority, the National Environmental Management Authority, the National Land Commission and the Cabinet Secretary for the Ministry of Water, Irrigation and Sanitation. She contended that the Lower Kuja Irrigation Development Project, a large-scale state-run rice growing project, displaced her household and about 65 others without a Resettlement Action Plan or livelihood restoration programme, violating her right to a clean and healthy environment. She sought fast-tracking of the petition, a site visit, interim compensation of Kshs. 1,100,000/=, conservatory orders of injunction and prohibition against continued rice farming, an order compelling the 1st Respondent to bear the cost of resurvey of land parcel North Kadem/Kanyuor/1051, and mandatory injunctions compelling the 2nd, 3rd and 4th Respondents to perform their statutory functions. The 1st Respondent opposed the motion, asserting that compensation processes had commenced and that the project served the public interest funded by public funds. The court framed six issues. It allowed fast-tracking, reasoning that land cases deserve priority under Article 159(2)(b). It reserved the site visit. It declined interim compensation as premature, declined conservatory and prohibition orders on public interest and proportionality grounds, and declined mandatory injunctions against the 2nd, 3rd and 4th Respondents as final in nature. It allowed the resurvey costs order. The motion was partially allowed; parties were encouraged to pursue alternative dispute resolution. Judgment was delivered at Migori on 20th January 2021 by G.M.A. Ongondo, Judge.

Key legal issues

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01

Fast tracking and priority hearing of the petition

Holding

The court allowed the prayer for fast tracking, applying the principle that land cases must be heard expeditiously and in the spirit of Article 159(2)(b)

Reasoning

The court approved the obiter in Mwangi v Mwangi that land is an extremely important aspect of the lives of ordinary people and land cases must get priority, even over accident injury cases. It also invoked Article 159(2)(b) of the Constitution which stipulates that justice shall not be delayed. On this basis, prayer 2 of the motion was allowed.

p. 4
02

Interim compensation of Kshs. 1,100,000/= before determination of the petition

Holding

The prayer was refused as premature since the compensation claim was still under controversy

Reasoning

The court acknowledged the applicant's condition but held that justice must be done to all irrespective of status under Article 159(2)(a). Granting interim payment would interfere with the proposed compensation process for all affected parties and would circumvent the hearing of the petition on merit. The prayer was therefore premature and disallowed.

p. 4
03

Grant of conservatory orders of injunction and prohibition against the irrigation project

Holding

Refused; the applicant failed to demonstrate a prima facie case, real danger of prejudice or that grant would serve the public interest

Reasoning

Applying the Munya principles, conservatory orders bear a public-law connotation and rest on the inherent merits, public interest and constitutional values. The court found that the compensation and valuation process was ongoing and that prohibiting the project would slow the process and compound the woes of the applicant and others. The applicant's entitlement to a clean environment under Articles 42, 69 and 70 had to be balanced against the economic and social rights under Article 43(1) served by the project.

p. 5
04

Cost of resurvey and boundary marking of land parcel North Kadem/Kanyuor/1051

Holding

Allowed; the cost of the survey and valuation exercise is to be borne by the 1st Respondent

Reasoning

The court noted that the survey and valuation exercise touching the suit land was ongoing and that it was the respondents' mandate to carry it out. Since the 1st Respondent was mounting the irrigation project, the cost of resurvey and marking of the boundaries by a registered or licensed surveyor was to be borne by it. This was reflected in the final orders allowing Order 7.

p. 5
05

Mandatory injunctions against NEMA, National Land Commission and the Cabinet Secretary

Holding

Refused at this interlocutory stage as the orders were mandatory and final in nature and depend on evidence at the hearing

Reasoning

The court observed that the reliefs sought against the 2nd, 3rd and 4th respondents mirrored reliefs in the petition and were mandatory and final in character. Such orders may only be allowed on the evidence adduced at the hearing of the petition. The parties were instead encouraged to pursue alternative dispute resolution under Article 159(2)(c) as that could dispose of the matter amicably.

p. 5

Legal principles established

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  • A party seeking a conservatory order must show a prima facie case with a probability of success and real danger of prejudice from the violation or threatened breach of the Constitution
  • Conservatory orders are public-law orders granted on the inherent merits of the case, bearing in mind public interest and constitutional values, not private-party irreparable harm considerations
  • Whether there is a threat of violation of rights is a question of fact requiring evidence
  • Land cases must be heard as quickly as possible and given priority over other cases

Court orders

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  1. 1.Order 2 of the motion (fast tracking and priority hearing of the application and petition) allowed
  2. 2.Order 7 of the motion (cost of resurvey and marking of boundaries of land parcel North Kadem/Kanyuor/1051 to be borne by the 1st Respondent) allowed
  3. 3.Orders 3, 5, 6, 8, 9 and 10 of the motion disallowed
  4. 4.Parties encouraged to embrace Alternative Disputes Resolution mechanisms to meet the ends of justice in the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 22(1)(2), 23(1)(3), 159(2)(a), 159(2)(b), 159(2)(c), 42, 43(1), 69, 70
  • Civil Procedure Rules, 2010Order 51 Rule 16

Cases cited (9)

  • United States International University =vs= Attorney General and 2 others
    (2012) eKLR
  • Mwangi and another =vs= Mwangi
    (1986) KLR 328
  • Giella -vs- Cassman Brown and Co. Ltd
    (1973) 358
  • Lucy Wangui Gachara -vs- Minundi Okemba Lore
    Malindi Civil Appeal No. 4 of 2015 (2015) eKLR
  • Gatirau Peter Munya =vs= Dickson Mwenda Kithinji & 2 others
    Supreme Court Application No. 5 of 2014 [2014] eKLR
  • Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others
    Civil Application Nai. 31 of 2016 [2016] eKLR
  • Speedex Logistics Ltd and 2 others =vs= DCI and 3 others
    Position No. 330 of 2018 (2018) eKLR
  • Macharia Mwangi Kagiri and 87 others =vs= Davidson Mwangi Kagiri
    (2014) eKLR
  • Films Role International Ltd =vs= Cannon Films Sales
    (1986) ALL ER 722
Jurisdiction invoked
Articles 22(1)(2) and 23(1)(3) of the Constitution of Kenya, 2010

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, "Prisca Aluoch Odongo v National Irrigation Authority & 3 others [2021] KEELC 4687 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4687/eng@2021-01-20

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