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ELCDismissedPetition dated 26th November 2019 (number not stated in judgment)· [2022] KEELC 125 (KLR)

Hassan & 3 others v Cabinet Secretary for Transport, Infrastructure Housing and Urban Development & 3 others (Environment & Land Petition 20 of 2019) [2022] KEELC 125 (KLR)

Environment and Land Court
6 May 2022
AOANTONY OMBWAYO
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, owners of unsurveyed residential plots in Kaloleni, Kisumu, petitioned alleging that the Respondents had introduced a new Part Development Plan to replace PDP No. N9/94/15 in a manner that would shift and reduce their parcels, violating Articles 40(1) and 35(1) of the Constitution. They sought a declaration of violation, a permanent injunction halting implementation of the new plan, and mandamus compelling the 2nd Respondent to provide information on its activities. The 1st to 3rd Respondents, through the Principal Secretary for Housing, responded that re-planning was necessitated by changes in the settlement since the 1983 and 1994 plans, and that the process was consultative and participatory through the settlement executive committee and community meetings held on 9/5/2016 and 14/6/2016; the 4th Respondent filed no response and one Petitioner dissociated herself from the petition. The court framed three issues: violation of the right to property, permanent injunction, and mandamus. Applying Anarita Karimi Njeru, it held the Petitioners failed to identify with precision how the new plan infringed their property rights or to adduce evidence of reduced acreage. Applying the Nguruman principles, the injunction failed for want of a prima facie case. On mandamus, although a duty to divulge information existed, there was no proof of a prior demand and refusal or unreasonable delay, and mandamus is discretionary. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Whether the new Part Development Plan violated the Petitioners' right to property under Article 40

Holding

No violation established; the petitioners failed to identify the salient differences between the plans or prove any reduction in acreage

Reasoning

The court acknowledged that a new plan replaced PDP No. N9/94/15, but found the Petitioners merely alleged alteration of plot sizes without producing evidence of the differences or the extent of any reduction. Applying Anarita Karimi Njeru, the manner of infringement had to be stated with precision, and on the material on record no infringement was decipherable.

p. 4
02

Whether a permanent injunction should issue

Holding

Refused; the Petitioners failed to establish a prima facie case with probability of success

Reasoning

Applying the Nguruman Limited principles, the court found the Petitioners had not identified the differences between the two plans or shown how the Respondents' actions would deprive them of their property. Having failed to establish a case with probability of success, the injunctive relief could not issue.

p. 4
03

Whether mandamus should issue compelling the 2nd Respondent to provide information

Holding

Refused; the preconditions for mandamus were not met

Reasoning

While the Respondents owed a duty to divulge information on the project, mandamus requires a prior demand, reasonable time to comply, and an express or implied refusal. The Petitioners proved no demand and denial, no unreasonable delay and no express refusal, and the grant of mandamus is discretionary.

p. 5

Legal principles established

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  • A party alleging violation of a constitutional right must state the manner of infringement with precision and support it with evidence.
  • An applicant for injunctive relief must establish a prima facie case, irreparable injury and balance of convenience.
  • Mandamus will only issue where there is a public legal duty, a prior demand and refusal or unreasonable delay, and no other adequate remedy.

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2), Article 23(3)(f), Article 35(1), Article 40(1)

Cases cited (8)

  • Okiya Omtata Okoiti v Commissioner General KRA & 2 others
    [2018] eKLR
  • Robert N Gakuru v County Government of Kiambu
    [2014] eKLR
  • Susan Waithera Kariuki & 4 others vs Town Clerk Nairobi City Council & 2 others
  • Anarita Karimi Njeru v The Republic (No 1)
    [1978] KLR 154
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No 77 of 2012; [2014] eKLR
  • Apotex Inc v Canada (Attorney General)
  • Dragan vs. Canada (Minister of Citizenship and Immigration)
  • Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another
    [2018] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 10(2), 23(3)(f), 35 and 40 (constitutional petition on violation of rights)

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, "Hassan & 3 others v Cabinet Secretary for Transport, Infrastructure Housing and Urban Development & 3 others (Environment & Land Petition 20 of 2019) [2022] KEELC 125 (KLR)", Case Analysis (2022). Petition dated 26th November 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/125/eng@2022-05-06

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