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ELCDismissedEnvironment & Land Case E1 of 2023· [2023] KEELC 21102 (KLR)

Gichuru v Kenya National Highways Authority

Environment and Land Court
26 October 2023
LOL. A. Omollo
1,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Nakuru court refused to stop KeNHA from entering a landowner's property because he couldn't prove his land was actually earmarked for the road project.

What this practically means

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Executive summary

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This is a ruling by L. A. Omollo, J of the Environment and Land Court at Nakuru on the Plaintiff's Notice of Motion dated 15th December 2022, brought under Article 40 of the Constitution, Section 63(c) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules. The Plaintiff, registered owner of land parcel Miti Mingi/Mbaruk Block 8/1224 (Kianjoya D) since 2007, sought conservatory orders restraining the Kenya National Highways Authority from entering and wasting the suit property pending hearing of his suit, in which he seeks a permanent injunction against compulsory acquisition or, alternatively, just compensation for the Nairobi (Rironi)-Nakuru-Mau Summit (A8) road expansion project. The Defendant did not respond despite service, and neither party filed submissions. The court framed a single issue: whether conservatory orders should issue. Applying the Supreme Court's decision in Gatirau Peter Munya and CREAW v Attorney General, the court required a prima facie case with likelihood of success and real danger of prejudice. While the Plaintiff demonstrated registered ownership and that the Respondent was compulsorily acquiring land for the road project, he failed to show that his parcel was among those listed for acquisition. Relying on Board of Management of Uhuru Secondary School, the court held that potential arguability is insufficient; the case must be beyond a speculative basis. The application was dismissed with costs.

Key legal issues

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Whether conservatory orders should issue restraining the Defendant from entering the suit property pending determination of the suit

Holding

The application was dismissed because the Applicant failed to demonstrate that the suit property was among the parcels targeted for compulsory acquisition, so no prima facie case beyond a speculative basis was established

Reasoning

The court applied the test for conservatory orders: a prima facie case with likelihood of success and real danger of prejudice. The Applicant showed registered ownership and that the Respondent was acquiring land for the road project, but did not show his parcel was among those listed for acquisition. Following Uhuru Secondary School, potential arguability alone is insufficient; the case must be beyond speculative. The application therefore lacked merit.

p. 5

Legal principles established

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  • A conservatory order requires more than a prima facie case that is potentially arguable; there must be a likelihood of success and the prima facie case must be beyond a speculative basis

Court orders

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  1. 1.The Plaintiff/Applicant's Notice of Motion application dated 15th December, 2022 is dismissed with costs
Jurisdiction invoked
Article 40 of the Constitution of Kenya; Section 63(c) of the Civil Procedure Act; Order 40 rules 1 and 3 and Order 51 rules 1, 2 of the Civil Procedure Rules

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, "Gichuru v Kenya National Highways Authority", Case Analysis (2023). Environment & Land Case E1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21102/eng@2023-10-26

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