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ELCDismissedNot stated in judgment· [2024] KEELC 1468 (KLR)

Sang & 5 others v The Board of Management Kenana Sec School & 2 others (Petition E001 of 2024) [2024] KEELC 1468 (KLR)

Environment and Land Court
14 March 2024
AOA O Ombwayo
2,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Nakuru Environment and Land Court refused to stop construction of a secondary school because parents were consulted and the classrooms were nearly complete.

What this practically means

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Executive summary

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Six petitioners, residents of Kapkein village and Lawina village in Molo Constituency, petitioned against the Board of Management of Kenane/Kenana Secondary School and the NGCDE, alleging that a secondary school was being constructed on LR No. Ngongongeri Settlement Scheme/302, a parcel allegedly reserved at adjudication and settlement for a primary school serving their community. They claimed the decision was made without public participation in breach of Article 10(2) of the Constitution and Section 24 of the NG-CDF Act, and infringed Articles 27, 47 and 53. They sought declarations of unconstitutionality, an order compelling a fresh comprehensive public participation process, and a permanent injunction, supported by a notice of motion for a conservatory order restraining the respondents from proceeding with construction and enrolment. The respondents, through the affidavit of Millicent W Gitonga, maintained that Kenana Primary School is the registered owner of the land (title issued on 16th July 1997), that the secondary school was established through parents' meetings on 4th September 2018 and 10th December 2018, and that it received a provisional certificate in 2021 and full registration on 30th August 2022 / 9th December 2023. The court applied the principles on conservatory orders drawn from Munya, Invesco Assurance and JSC v Speaker of the National Assembly, and the caution expressed in Muslim for Human Rights. It found the applicants had not proved an absence of public participation, as 365 parents were consulted, and held that public interest favoured refusal since classrooms were at roofing stage. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether public participation was absent in the decision to build a secondary school on land reserved for a primary school

Holding

The applicants failed to demonstrate total absence of public participation; 365 parents of Kenana primary school were consulted before the decision.

Reasoning

The court found evidence of consultations through parents' meetings held on 4th September 2018 and 10th December 2018, at which the primary school community resolved to establish a secondary school. In these circumstances the applicants' claim of a complete lack of public participation under Article 10(2) was not made out on the evidence.

p. 5
02

Whether a conservatory order should issue against the construction of Kenana Secondary School

Holding

The conservatory order was refused because it would be against public interest, given that construction had reached roofing stage.

Reasoning

Applying the public-law nature of conservatory orders, the court weighed public interest. The school was near completion with two classrooms at roofing stage and the school already held registration certificates from the Ministry of Education. Halting the project at that stage would serve no public interest, so the application was dismissed.

p. 5

Legal principles established

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  • A court must exercise caution with conservatory orders and not determine issues reserved for the main petition at the interlocutory stage.
  • Public interest is a central consideration in granting or refusing conservatory orders.

Court orders

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  1. 1.The notice of motion seeking a conservatory order is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Articles 10, 27, 47 and 53 of the Constitution of Kenya, 2010 (as invoked in the petition)

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, "Sang & 5 others v The Board of Management Kenana Sec School & 2 others (Petition E001 of 2024) [2024] KEELC 1468 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1468/eng@2024-03-14

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