Lone Tree Limited v Water Resources Authority (Petition E031 of 2021) [2022] KEELC 3311 (KLR)
The bottom line
#A Nairobi court stopped the demolition of a Nairobi property, ruling the property owner showed a real threat deserving protection while the main case is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction over the petition given Section 144 of the Water Act, 2016
The court found the Water Tribunal has jurisdiction at first instance over the dispute concerning the Authority's order under Section 144, and that the Tribunal's alleged non-constitution does not confer authority on this court to usurp that jurisdiction
Section 144 of the Water Act, 2016 empowers the Authority to require remedying of contraventions and vests the Tribunal with jurisdiction over appeals and recovery applications. The court held that the claim, which centres on the Authority's stop order and demolition notice, falls within the Tribunal's ambit and that no provision allows the court to take over the Tribunal's role merely because the Tribunal is not fully constituted.
Whether the Petitioner is entitled to conservatory orders
The court found the Petitioner established a prima facie case (ownership of the suit property protected under Article 40) and real prejudice (the property was earmarked for demolition), and granted the conservatory order in the public interest
Applying the principles in Gatirau Peter Munya and Kenya Association of Manufacturers, the court found evidence of ownership and ongoing construction, and a looming danger to the Petitioner's property rights given the demolition markings and notices. Since the land was alleged to be a watercourse and riparian reserve constituting public land, it was in the public interest to preserve the status quo pending the petition's hearing.
Costs of the application
Costs were ordered to abide the outcome of the petition
Rather than awarding costs to either party at the interlocutory stage, the court deferred the question of costs until the substantive petition is determined.
Legal principles established
#- Conservatory orders are public-law oriented remedies granted on the inherent merits of a case, bearing in mind public interest, constitutional values and proportionate magnitudes, and are not tied to private-law tests of irreparable harm or probability of success
- On an application for conservatory orders the court examines the materials to determine whether a prima facie case is made out and whether the applicant will suffer prejudice if the order is not granted, without making definite findings of fact or law
- A constitutional petitioner must set out with a reasonable degree of precision the complaint, the provision said to be infringed and the manner of infringement
Court orders
#- 1.A conservatory order issued restraining the Respondent, whether by itself, its employees and agents or through other persons or agents acting on its authority or on the basis of its notices and pronouncements, from entering into, demolishing, seizing or in any other way interfering with the Petitioner's quiet enjoyment of the property comprised of LR No 21/1/22
- 2.Costs of the application to abide the outcome of the Petition
- Jurisdiction invoked
- Articles 22, 23, 40, 47, 159 of the Constitution of Kenya; Section 9(4) of the Fair Administrative Action Act; Sections 1A, 1B, 3A, 63E of the Civil Procedure Act; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lone Tree Limited v Water Resources Authority (Petition E031 of 2021) [2022] KEELC 3311 (KLR)", Case Analysis (2022). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3311/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.