Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as reproduced· [2022] KEELC 3311 (KLR)

Lone Tree Limited v Water Resources Authority (Petition E031 of 2021) [2022] KEELC 3311 (KLR)

Environment and Land Court of Kenya
9 June 2022
2,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
The Petitioner, owner of property on L.R No. 21/1/22, filed a petition dated 3rd August 2021 together with a Notice of Motion dated 6th August 2021 seeking conservatory orders to restrain the Respondent, a water resources regulator under the Water Act, 2016, from demolishing, seizing or interfering with its property, which the Respondent had marked 'Demolish' and 'Remove from River'. The Petitioner alleged the in-stream works were approved by the Respondent by letters of 13th and 15th June 2021, and that its rights under Articles 40 and 47 were threatened. The Respondent, through its manager John Kinyanjui, opposed, asserting the Petitioner had built a permanent structure on a stream and its riparian reserve and sought to divert a tributary of Rui Ruaka River without a permit, contravening Section 13 of the Water Act and Rules 118 and 119 of the Water Resource Management Rules, 2013; it had issued a stop order on 23rd June 2021 and a demolition demand on 28th July 2021, threatening action under Section 144. The court framed three issues: jurisdiction, entitlement to conservatory orders, and costs. On jurisdiction, it held the dispute over the Section 144 order properly belonged to the Water Tribunal, and that the Tribunal's incomplete constitution gave no basis to usurp its jurisdiction. Nonetheless, applying the Supreme Court's principles in Gatirau Peter Munya and the Kenya Association of Manufacturers case, the court found a prima facie case and real prejudice - the property was earmarked for demolition - and that it was in the public interest to preserve the status quo. The application was allowed: a conservatory order was issued restraining the Respondent from interfering with the Petitioner's quiet enjoyment of LR No 21/1/22, and costs of the application were ordered to abide the outcome of the petition.

Key legal issues

#
01

Whether the court has jurisdiction over the petition given Section 144 of the Water Act, 2016

Holding

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

Reasoning

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.

p. 5
02

Whether the Petitioner is entitled to conservatory orders

Holding

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

Reasoning

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.

p. 5
03

Costs of the application

Holding

Costs were ordered to abide the outcome of the petition

Reasoning

Rather than awarding costs to either party at the interlocutory stage, the court deferred the question of costs until the substantive petition is determined.

p. 6

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. 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. 2.Costs of the application to abide the outcome of the Petition

Authorities

#

Legislation

  • Constitution of KenyaArticles 22, 23, 40, 42, 47, 66, 69, 70, 159; Article 22(3)(b) and (d)
  • Fair Administrative Action ActSection 9(4)
  • Civil Procedure ActSections 1A, 1B, 3A, 63E
  • Civil Procedure RulesOrder 45 and Order 18 Rule 9(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013General
  • Water Act, 2016Section 13; Section 144(1),(2),(3)
  • Water Resource Management Rules, 2013Rules 118, 119

Cases cited (11)

  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Kimitei Samoei v Michael Ngige & 2 Others
    [2021] eKLR
  • Milimani Splendor Management Limited v National Environment Management Authority & 4 others
    [2019] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary-Ministry of Environment and Natural Resources & 3 others
    [2017] eKLR
  • V/D Berg Roses Agro Lease Limited v Attorney General & Mineral Resources
    [2016] eKLR
  • Baljit Sokhil & Charity Ngilu, Cabinet Secretary, Ministry of Lands, Housing and Urban Development & Another
    [2021] eKLR
  • Nzioka & 2 Others v Tiomin Kenya Limited
    [2001] eKLR
  • Edith Wangari Gitata v Athi Water Service Board
    [2012] eKLR
  • Anarita Karimi Njeru vs Republic
    [1976-80] 1 KLR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance
    Civil Appeal No 290 of 2012
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
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.