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ELCAllowedPetition dated 2024 (application dated 8th August 2024)· [2025] KEELC 95 (KLR)

Board of Management, Ngara Girls High School & another v Erdemann Property Limited & another; Ministry of Education (Interested Party) (Constitutional Petition E066 of 2024) [2025] KEELC 95 (KLR)

Environment and Land Court
21 January 2025
2,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court suspended a company's operations near Ngara Girls High School, prioritising students' health and environmental rights over property claims.

What this practically means

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Executive summary

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The Petitioners, through an application dated 8th August 2024, sought a conservatory order suspending the operations of Erdemann Property Limited (1st Respondent) on L.R. No. LR 209/136/239/R pending the hearing of their petition. They contended that a three-year lease granted to the 1st Respondent over part of the parcel for temporary stocking of materials during construction of the River Estate Project expired on 10th June 2023 and was not renewed, yet the 1st Respondent continued to occupy the land and undertake concrete processing, generating noise and dust that disrupted learning at Ngara Girls High School and endangered the health of students and staff, in violation of various constitutional provisions and the Climate Change Act. The 1st Respondent opposed, asserting that it held all regulatory approvals including a NEMA EIA licence and building permit, had taken mitigation measures, and that the petition was an abuse of process designed to evict it without complying with Section 152E of the Land Act. The Ministry of Education, through Principal Secretary Dr. Belio Kipsang, supported the application. Applying the principles in Board of Management of Uhuru Secondary School and Gatirau Peter Munya, and the precautionary principle under Section 18(a)(vi) of the Environment and Land Court Act and Section 3(5)(f) of EMCA, the court held that public interest favoured conservatory orders. It issued the conservatory order in terms of prayer 3, suspending the 1st Respondent's operations on the suit property pending determination of the petition, with costs in the cause and priority hearing. The trespass question was left for trial.

Key legal issues

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01

Entitlement to conservatory orders pending determination of the petition

Holding

Conservatory orders granted suspending the 1st Respondent's operations on the suit property, guided by the Gatirau Munya principles, the precautionary principle and public interest in the health of students and staff.

Reasoning

The court applied the principles in Board of Management of Uhuru Secondary School and Gatirau Peter Munya: prima facie case, enhancement of constitutional values, nugatory risk and public interest. It also invoked the precautionary principle under Section 18(a)(vi) of the Environment and Land Court Act and Section 3(5)(f) of EMCA. Given the alleged noise and dust affecting the school, public interest favoured conservatory orders.

p. 5
02

Trespass claim

Holding

The trespass question was not determined at the interlocutory stage; it is reserved for trial with full evidence and cross-examination.

Reasoning

The court held that whether the 1st Respondent is trespassing after expiry of the lease is a factual dispute requiring substantive evidence, cross-examination and rebuttal evidence, and thus cannot be conclusively determined on affidavit material in an interlocutory application.

p. 4

Legal principles established

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  • Conservatory orders should be granted on the inherent merits of the case bearing in mind public interest, constitutional values and proportionate magnitudes
  • In an interlocutory application the court makes no conclusive findings of fact or law on contradictory affidavit evidence

Court orders

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  1. 1.Conservatory order issued in terms of prayer 3 of the Petitioners' application dated 8th August 2024, suspending the operations of Erdemann Property Limited on L.R. No. LR 209/136/239/R, pending the hearing and determination of the petition
  2. 2.Costs of the application shall be in the cause
  3. 3.The matter, touching on environmental rights, to be heard on a priority basis
Jurisdiction invoked
Constitution of Kenya, 2010 and Environment and Land Court Act, Section 18

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, "Board of Management, Ngara Girls High School & another v Erdemann Property Limited & another; Ministry of Education (Interested Party) (Constitutional Petition E066 of 2024) [2025] KEELC 95 (KLR)", Case Analysis (2025). Petition dated 2024 (application dated 8th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/95/eng@2025-01-21

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