Nubian Human Rights Forum & 4 others v Nairobi Metropolitan Services & 3 others [2022] KEELC 1383 (KLR)
The bottom line
#A Kenyan court refused to stop demolitions for a Kibra road project, saying the community failed to prove its case and the road serves public interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants met the threshold for conservatory orders
The application failed; no conservatory orders were granted
Applying the Gatirau Peter Munya principles, the court found the public participation claim controverted and unproven, and held that public interest favours construction of a road benefiting all residents of the area. The Petitioners, sued in their private capacity, did not demonstrate entitlement to conservatory orders, though the court observed demolitions should be carried out humanely.
Whether there was public participation
Public participation was established; the claim failed
The Resident Engineer deponed that a stakeholders' forum was held on 30th August 2017 with 55 Lindi Ward representatives, after which the road was planned and budgeted for. The court found these averments uncontroverted and supported by the 2nd Respondent's solicitor's affidavit.
Whether the petition was brought in public interest
The petition was brought in the Petitioners' private capacity
The court agreed with the 2nd Respondent that the Petitioners, as members of the Nubian Community, did not litigate in public interest as defined in Mumo Matemu v Trusted Society of Human Rights Alliance.
Demolition conduct
Though dismissed, demolitions should be humane
The court, while declining conservatory orders, expressed the view that demolitions ought to be carried out humanely - a caution to the Respondents in executing the road project.
Legal principles established
#- An applicant for conservatory orders must demonstrate an arguable prima facie case with a likelihood of success and prejudice if the orders are not granted
- Public interest is a material consideration in the grant or denial of conservatory orders
Court orders
#- 1.The notice of motion dated 2nd June 2021 is dismissed
- 2.Costs to abide the outcome of the Petition
- Jurisdiction invoked
- Articles 22 and 23(3) of the Constitution of Kenya, 2010; Rules 3, 19, 23(1) and 24(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Section 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nubian Human Rights Forum & 4 others v Nairobi Metropolitan Services & 3 others [2022] KEELC 1383 (KLR)", Case Analysis (2022). Petition No EO22 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1383/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.