Kubasali & another (Suing as in the Interest of the Parties) v National Land Commission & 2 others; Mogaka & 2 others (Interested Parties) (Environment and Land Petition E004 of 2025) [2025] KEELC 5824 (KLR)
The bottom line
#The Environment and Land Court in Kitale refused to protect a disputed public park from development because the applicants couldn't show their case would likely succeed.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders should issue to preserve the suit parcel pending the substantive petition
The application was dismissed; the applicants failed to establish a prima facie case with likelihood of success, and uncontroverted annexures (including a prior judgment in Kitale ELC No. 64 of 2011 finding the 2nd interested party a lawful purchaser) undermined the claim that the land is public land
The court applied the Gatirau Peter Munya and Wilson Kaberia Nkunja thresholds: prima facie case with likelihood of success, real danger of prejudice, nugatory-ness and public interest. It examined the annexures to the 2nd interested party's replying affidavit and found no rival affidavit challenging their authenticity, including the earlier judgment and pending appeal. On that material the applicants could not show likelihood of success or imminent real danger.
Whether the petition raises substantial public-interest issues warranting a specially constituted bench under Article 165(4)
Not determined in the applicants' favour; the entire notice of motion seeking those directions was dismissed and the petition was directed to be heard on a priority basis
Although the applicants sought directions on certification under Article 165(4), the court confined itself to the conservatory orders question and, finding the threshold unmet, dismissed the whole motion, leaving certification for the substantive hearing.
Legal principles established
#- Conservatory orders bear a public law connotation and are aimed at preserving the substratum of the pending matter pending determination of the main issues
- An applicant for conservatory orders must demonstrate a prima facie case with likelihood of success, real danger of prejudice, that the petition would not be rendered nugatory, and that public interest favours the grant; arguability alone is insufficient
Court orders
#- 1.The notice of motion dated 28/3/2025 is dismissed
- 2.No orders as to costs
- 3.The petition to be heard on a priority basis
- Jurisdiction invoked
- Article 165(3)(b) and (d)(ii) of the Constitution; Sections 13(7) and 21 of the Environment and Land Court Act; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kubasali & another (Suing as in the Interest of the Parties) v National Land Commission & 2 others; Mogaka & 2 others (Interested Parties) (Environment and Land Petition E004 of 2025) [2025] KEELC 5824 (KLR)", Case Analysis (2025). ELC Petition (Conservatory Application dated 28/3/2025), Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5824/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.