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ELCDismissedELC Petition (Conservatory Application dated 28/3/2025), Kitale· [2025] KEELC 5824 (KLR)

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)

Environment and Land Court
30 July 2025
2,371 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Nzili J) on a notice of motion dated 28/3/2025 filed by petitioners Benard Simiyu and Andrew Khisa in a constitutional petition concerning land known as Kitale Municipality Block 4/364 (0.1932 Ha). The applicants alleged the parcel was designated Kamukunji Park but was fraudulently allocated to the 1st interested party (Mariba Enterprises Limited) in 1994 by the 1st and 2nd respondents without survey plans, a RIM, or public participation, and later transferred to the 2nd interested party, a private developer claiming to be a bona fide purchaser since 1999. The applicants sought interim conservatory orders restraining interference with the parcel, directions on whether the petition raised substantial public-interest issues warranting a specially constituted bench under Article 165(4) of the Constitution, and an investigation into alleged collusive allocation. The 2nd interested party opposed, relying on a certificate of lease, an earlier judgment in Kitale ELC No. 64 of 2011 in its favour (with a pending appeal, Civil Appeal No. E042 of 2022), and a partly-heard suit, Kitale CMC Land Case No. 75 of 2018, and argued res judicata-type objections, functus officio, delay and lack of demonstrated prejudice. The court applied the established conservatory-order thresholds (prima facie case with likelihood of success, real danger, nugatory-ness, public interest) and, noting there was no rival affidavit challenging the authenticity of the 2nd interested party's annexures, held the threshold was not met. The application was dismissed with no orders as to costs; the petition is to be heard on a priority basis.

Key legal issues

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01

Whether conservatory orders should issue to preserve the suit parcel pending the substantive petition

Holding

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

Reasoning

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.

p. 5
02

Whether the petition raises substantial public-interest issues warranting a specially constituted bench under Article 165(4)

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 28/3/2025 is dismissed
  2. 2.No orders as to costs
  3. 3.The petition to be heard on a priority basis

Authorities

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Legislation

  • Constitution of KenyaArticle 165(3)(b) and (d)(ii)
  • Constitution of KenyaArticles 40, 47, 60(1)(a),(b),(c),(d), 165(4), 259(8)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure ActSection 3A
  • Environment and Land Court ActSections 13(7) and 21
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23

Cases cited (11)

  • Gatirua Peter Munya v Dickson Mwenda Kithinji & Others
    [2014] eKLR
  • Wilson Kaberia Nkunja v Judges Vetting Board & Others
    [2016] eKLR
  • Mrao v First American Bank of Kenya Limited & 2 Others
    [2003] eKLR
  • Mirugi Kariuki v Attorney General & Others
    [1992] EA 156
  • Board of Management of Uhuru Secondary School v City Council Director of Education & Others
    [2015] eKLR
  • Centre for Rights Education and Awareness (CREAW) & Others v Attorney General
    [2011] eKLR
  • Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party)
    [2020] eKLR
  • Centre for Rights Education & Awareness (CREAW) & another v Speaker of the National Assembly & 2 others
    [2017] eKLR
  • Martin Nyaga Wambora v Speaker of the County Assembly of Embu & Others
    [2014] eKLR
  • Said Chitebwe v Edward Muriu Kuria & Others
    [2011] eKLR
  • Aura v Attorney General & 6 others
    [2024] KEHC 7031 (KLR)
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

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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, "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.