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ELCOtherEnvironment & Land Petition E004 of 2022· [2023] KEELC 21881 (KLR)

Chebugel & 3 others v Kenya Rural Roads Authority & 7 others; Rono (Suing as the legal representative of the Estate of Cherono Chebowo (Deceased) & 3 others (Interested Parties)

Environment and Land Court
23 November 2023
LOL.A. Omollo
778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This short ruling by L.A. Omollo, J of the Environment and Land Court at Nakuru arises from a constitutional petition (E004 of 2022) in which the Petitioners, members of the public using the Muserech-Orinie-Kapsatek road, seek among other reliefs the re-opening of that road, which the 5th Respondent allegedly blocked by fencing. On 23rd March 2023 the court declined a temporary mandatory injunction, allowing only prayer (g) - that the 2nd and 3rd Respondents file a report on ownership and boundaries of parcels adjacent to the road - and dismissed the 5th Respondent's application for security for costs of Ksh 10,000,000. Pursuant to that order, the Regional Surveyor, Rift Valley Region, filed a report dated 2nd October 2023. The Petitioners submitted that the report showed the road should be re-opened, the alternative route being in poor condition. The 5th Respondent disputed the report, claiming non-involvement in the survey, and sought a locus in quo visit. Counsel for the National Land Commission supported re-opening, noting an expert report should be challenged by an alternative expert report, and the 1st Respondent and Attorney General also supported re-opening. The court held that re-opening the road is a matter for determination in the petition under prayer (iii), that its earlier position on mandatory injunction remained unchanged, and that issuing a re-opening order now would amount to reviewing its own orders without being moved. It ordered the matter to proceed to directions on the hearing of the petition. No costs order was made.

Key legal issues

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01

Whether the surveyor's report justified an interim order re-opening the road

Holding

No - the court declined, holding the re-opening question is reserved for the petition and that it would not review its earlier ruling of 23rd March 2023 absent a formal application

Reasoning

The court noted its earlier ruling found no special circumstances warranting a mandatory injunction at that stage. Counsel submissions on the Regional Surveyor's report, including support for re-opening from the 1st, 8th Respondents and the Attorney General, did not change that position. The 5th Respondent disputed the report and sought a locus in quo visit. The court held the re-opening question falls under prayer (iii) of the petition and directed the matter to pre-trial directions.

p. 2

Legal principles established

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  • A court will not issue an order for re-opening of the road at an interlocutory stage where the substantive question is reserved for determination in the petition, as that would amount to reviewing its own orders without being moved

Court orders

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  1. 1.The matter to proceed to taking directions on the hearing of the Petition
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (not expressly cited in the ruling)

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, "Chebugel & 3 others v Kenya Rural Roads Authority & 7 others; Rono (Suing as the legal representative of the Estate of Cherono Chebowo (Deceased) & 3 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21881/eng@2023-11-23

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