Mareta v CECM Lands, Physical Planning, Urban Developmenet, Housing & Public Works & another (Environment & Land Petition E008 of 2024) [2024] KEELC 6091 (KLR)
The bottom line
#A Meru court refused temporary protection against demolition, ruling that the landowner waited too long and skipped required dispute processes before rushing to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case warranting conservatory orders
The court was not convinced that conservatory orders were the appropriate remedy at the interlocutory stage
The applicant did not show he exhausted or invoked the internal dispute mechanism under PLUPA to challenge the demolition notice; boundary determinations fall under the land registrar and surveyor under Sections 13-18 of the Land Registration Act; the delay from August 2023 to May 2024 was unexplained; and imminent danger of demolition or eviction was not pleaded. The petition should be served and heard on priority instead.
Whether the applicable test for temporary injunction or conservatory orders was met
The court applied the Giella test for temporary injunctions and the conservatory-order test (arguable case, prejudice/nugatory petition, public interest) and found both unsatisfied
Citing Gatirua Peter Munya, the court distinguished interlocutory injunctions (private law, Giella principles) from conservatory orders (public law connotation, granted on inherent merit, public interest and constitutional values). On the material, the applicant failed to demonstrate an arguable case with likelihood of success, that absence of orders would render the petition nugatory, or that public interest favoured the grant.
Right of access to court by constitutional petition
The petitioner had a right to institute the petition under Articles 22(1) and 258(1) of the Constitution, but that did not dispose of the interlocutory application
The court acknowledged, without dispute, the petitioner's entitlement to bring a constitutional petition. However, existence of the right to petition did not automatically justify interim conservatory relief; the applicant still had to satisfy the substantive tests for conservatory orders, including explaining delay and addressing statutory dispute-resolution avenues under PLUPA and the Land Registration Act.
Legal principles established
#- Conservatory orders bear a public law connotation and are granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes, unlike interlocutory injunctions to which the Giella v Cassman Brown principles apply
- A conservatory order preserves the subject matter pending hearing and is an order of status quo
- Conservatory orders are constitutional remedies issued in rem rather than in personam and require caution so as not to finally determine matters reserved for the main petition
- A prima facie case exists where, on the material before the court, there appears a right infringed so as to call for an explanation or rebuttal from the opposite party
Court orders
#- 1.The application dated 20.5.2024 seeking a temporary order of injunction/conservatory orders pending the hearing of the petition is dismissed
- 2.The petition to be served upon the respondents and to be heard on a priority basis
- 3.No order as to costs - application dismissed with no order as to costs
- Jurisdiction invoked
- Constitutional petition brought under the Constitution and Sections 66 and 72(1) & (2) of the Physical and Land Use Planning Act, 2019; right of petition under Articles 22(1) & 258(1) of the Constitution as cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mareta v CECM Lands, Physical Planning, Urban Developmenet, Housing & Public Works & another (Environment & Land Petition E008 of 2024) [2024] KEELC 6091 (KLR)", Case Analysis (2024). Not stated in the judgment (constitutional petition, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6091/eng@2024-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.