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ELCPartially AllowedPetition No E073 of 2024· [2025] KEELC 4492 (KLR)

Gikenyi & 7 others v Gacanja & 8 others; Ethics & Anti-Corruption Commission & 3 others (Interested Parties); Nyakundi (Proposed Interested Party) (Petition E073 of 2024) [2025] KEELC 4492 (KLR)

Environment and Land Court
27 March 2025
3,816 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (J. G. Kemei, J) delivered on 27 March 2025 on two applications arising from a petition contesting the alienation of public land in Kilimani, Nairobi. The Petitioners, led by Dr. Magare Gikenyi, alleged that public land, originally LR 2X9/3X1/2, was subdivided into LR 2X9/11XX1 and LR 2X9/11XX2 and allocated to the 3rd Respondent, Soneth Limited, whose directors include the former Commissioner of Lands, despite land records still showing the land as public. They sought conservatory orders restraining any dealings with the suit property pending the petition. The 1st to 3rd Respondents asserted lawful allotment, registered title, 33 years' quiet possession, and reconstruction of missing Deed Files. The 4th Respondent (National Land Commission) and 7th to 9th Respondents maintained the parcels were duly granted to Soneth Limited. A proposed 5th Interested Party, Ben Omenge Amoro Nyakundi, claimed registered ownership of a portion and sought joinder. The Court framed three issues and held that the Petitioners had demonstrated an arguable prima facie case with likelihood of success, satisfying the conservatory-order principles in Gatirau Peter Munya and Law Society of Kenya v Attorney General. It also held the Proposed Interested Party, holding a Certificate of Lease over the property, was a necessary party under the Muruatetu criteria. The Court issued status quo orders preserving the suit property, barred any change of user, transfer, sale or lease pending determination, allowed current occupiers to remain, enjoined the Applicant as 5th Interested Party, and ordered costs in the cause.

Key legal issues

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01

Whether conservatory orders were warranted

Holding

Yes - the Petitioners demonstrated an arguable prima facie case with likelihood of success and likely prejudice if orders were withheld, meeting the four-pronged test from Law Society of Kenya v Attorney General and the Gatirau Peter Munya framework

Reasoning

The Petitioners challenged the root of the 3rd Respondent's title, adducing a Public Notice of proposed change of user and evidence of a lease to a third party who might commence construction. Full validity of title could not be determined at interlocutory stage, but preservation orders would protect public interest without wasting the fixed property; if the land is found private, the 3rd Respondent remains free to deal with it.

p. 6
02

Whether the Proposed 5th Interested Party should be joined

Holding

Yes - he claims registered proprietorship over the suit property, will be affected by any decision, and is a necessary party entitled to be heard under the Muruatetu criteria and Order 1 Rule 10(2)

Reasoning

Applying the Supreme Court's criteria in Francis K. Muruatetu and the Communications Commission definition, the Applicant set out a proximate, identifiable interest (a Certificate of Lease and search over the property), demonstrated prejudice from non-joinder, and would add a distinct case on ownership. The Petitioners did not oppose; justice required he be heard.

p. 8

Legal principles established

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  • Conservatory orders are public-law orders granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law interlocutory injunction tests
  • At an interlocutory stage, a court need not conduct a mini-hearing; it need only be satisfied that there is a right threatened or likely to be threatened requiring protection

Court orders

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  1. 1.Status quo orders be and are hereby issued to preserve the suit property pending the hearing and determination of the petition
  2. 2.The respondents, agents, assigns, employees or any persons acting under them shall not in any way change user, transfer, sell, lease and/or in any way interfere with the suit property pending the hearing and determination of the Petition
  3. 3.The parties currently in possession and occupation of the suit properties shall continue to so occupy pending the hearing and determination of the Petition
  4. 4.The Proposed Interested Party be and is hereby enjoined as the 5th Interested Party
  5. 5.Costs of the applications shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules 2013 (Mutunga Rules)Rule 23

Cases cited (6)

  • Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 others
    [2014] e K.L.R
  • Law Society of Kenya –vs- Office of the Attorney General & Another; Judicial Service Commission (Interested Party)
    (2020) eKLR
  • Mrao –vs- First American Bank
    (2003) KLR 125
  • Communications Commission of Kenya and 4 Others –vs- Royal Media Services Limited & 7
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Francis K. Muruatetu and Another vs. Republic & 5 Others
    (2016) eKLR
Jurisdiction invoked
Article 23 of the Constitution; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules 2013

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, "Gikenyi & 7 others v Gacanja & 8 others; Ethics & Anti-Corruption Commission & 3 others (Interested Parties); Nyakundi (Proposed Interested Party) (Petition E073 of 2024) [2025] KEELC 4492 (KLR)", Case Analysis (2025). Petition No E073 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4492/eng@2025-03-27

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