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ELCDismissedPetition dated 14/1/2025 (Constitutional Petition)· [2025] KEELC 3546 (KLR)

Gandani (Suing on behalf of the Gandani Family) v National Land Commission & 2 others (Environment & Land Petition E003 of 2025) [2025] KEELC 3546 (KLR)

Environment and Land Court
30 April 2025
MNMWANGI NJOROGE
1,591 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to freeze disputed public land because the clan seeking protection only wanted compensation, which money can cover.

What this practically means

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Executive summary

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The Petitioner, acting for the Gandani clan, filed a constitutional Petition dated 14 January 2025 seeking an order compelling the 1st Respondent to expedite the clan's compensation claim for the compulsory acquisition of parcel Buni/Kisimani/813, and a contemporaneous Notice of Motion seeking conservatory orders restraining the 3rd Respondent from alienating, transferring, developing or otherwise interfering with the suit property pending the hearing of the Petition. The application was anchored on Articles 22, 23(3)(c) and 162(2)(b) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 23 of the Mutunga Rules. The Respondents did not file responses or submissions, so the application was unopposed. The court set out the test for conservatory orders from the Supreme Court in Munya and the Kenya Association of Manufacturers case: prima facie case, prejudice, and public interest. It found the Petitioner had demonstrated a prima facie case, since the clan's historical claim, the 1983 trusteeship registration, an official search showing the land reserved for Bungule Primary School, and the 1st Respondent's 2018 meeting recommendation to seek compensation. However, applying Nguruman, the court held the Petitioner failed to demonstrate irreparable loss not compensable in damages: the alleged activities on the land were not particularised, the fear of alienation was speculative, and the substantive relief sought in the Petition was compensation. The Notice of Motion was accordingly dismissed with no orders as to costs, without disturbing the substantive Petition.

Key legal issues

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01

Prima facie case for conservatory orders

Holding

Established on the material placed before the court

Reasoning

The Petitioner showed the suit property historically belonged to his clan, that a portion was donated for a school, that the 3rd Respondent registered the whole property under trusteeship, and that the 1st Respondent's meeting of 21/5/2018 acknowledged the clan's interest and recommended a compensation claim. An official search showed the property reserved for Bungule Primary School.

p. 3
02

Irreparable loss

Holding

Not demonstrated; application fails

Reasoning

The Petitioner did not demonstrate the specific agricultural or cultural activities on the land or how their interference would occasion irreparable harm not compensable by damages. The fear of alienation was speculative, and since the substantive relief sought is monetary compensation, damages would suffice.

p. 4

Legal principles established

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  • The Petitioner failed to demonstrate irreparable loss; the apprehension of development/alienation was speculative
  • Where the ultimate relief sought is compensation, refusal of conservatory orders causes no irreparable loss

Court orders

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  1. 1.The Notice of Motion dated 14/1/2025 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(c), 162(2)(b)
  • Civil Procedure ActSections 1A, 1B & 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23

Cases cited (4)

  • Peter Munya Gatirau v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others
    (2017) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Ltd v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Articles 22, 23(3)(c) and 162(2)(b) of the Constitution of Kenya, 2010

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, "Gandani (Suing on behalf of the Gandani Family) v National Land Commission & 2 others (Environment & Land Petition E003 of 2025) [2025] KEELC 3546 (KLR)", Case Analysis (2025). Petition dated 14/1/2025 (Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3546/eng@2025-04-30

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