Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMotion dated 21/5/2025 in pending petition (petition number not stated in judgment)· [2025] KEELC 7513 (KLR)

Malik & 8 others v Cabinet Secretary Ministry of Interior & National Administration & 6 others (Environment and Land Petition E015 of 2024) [2025] KEELC 7513 (KLR)

Environment and Land Court
30 October 2025
MNMwangi Njoroge
8,394 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

#

A Kenyan court let land petitioners update their case but refused to suspend a gazette notice declaring their land a protected area.

What this practically means

#

Executive summary

#
This is a ruling on a notice of motion dated 21st May 2025 filed by the petitioners in a pending petition before the Environment and Land Court at Malindi concerning disputed land occupied by the 1st respondent. The motion sought conservatory orders suspending Gazette Notice number 6235 of 16th May 2025, by which the Cabinet Secretary for Interior and National Administration declared the suit parcel a Protected Area under Section 3 of the Protected Areas Act Cap 204, and leave to amend the petition to challenge the gazettement and the constitutionality of Section 3(1) of that Act against Article 40(2)(a) of the Constitution. The 1st respondent opposed, citing national security and critical security infrastructure on the land; the 3rd, 4th, 5th and 6th respondents filed grounds of opposition; the 7th respondent, the County Government of Tana River, supported the application, asserting the land is unregistered community land held in trust under Article 63 and the Community Land Act. The court applied Order 8 Rules 1 and 3 of the Civil Procedure Rules, Rule 18 of the Mutunga Rules, and the principles in Nakumatt and St. Patrick's Hill. It allowed the amendments as arising from the same cause of action and causing no uncompensable prejudice, but excluded the prayer declaring Section 3(1) unconstitutional as an afterthought altering the nature of the action. On conservatory orders, applying Gatirau Peter Munya and CREAW, the court found a prima facie case but refused the orders, holding the petitioners would derive no practical benefit since they had already been excluded and earlier conservatory orders had been declined. The court censured the 1st respondent's unilateral action during litigation. The application was partially allowed with costs of the application abiding the outcome of the petition.

Key legal issues

#
01

Leave to amend the petition

Holding

Amendments allowed except the prayer challenging the constitutionality of Section 3(1) of the Protected Areas Act

Reasoning

Applying Order 8 Rules 1 and 3 of the Civil Procedure Rules and Rule 18 of the Mutunga Rules, and the Nakumatt and St. Patrick's Hill principles, the court found that the amendments prompted by the gazettement arose from the same cause of action (de facto occupation of the land), caused no uncompensable prejudice since the petition was not yet heard, and would minimise litigation. However, the prayer declaring Section 3(1) unconstitutional was an afterthought that substantively altered the original action and was excluded.

p. 11
02

Conservatory orders suspending Gazette Notice 6235

Holding

Refused despite a prima facie case being established

Reasoning

Applying Gatirau Peter Munya and CREAW, the court balanced the prima facie case against public interest. It found that the petitioners had already been excluded from the land before filing the petition, so the gazettement would occasion no further prejudice; conservatory orders had previously been declined in the ruling of 19/12/2024 and that position stood unappealed; and the order would confer no practical benefit. The court nonetheless censured the unilateral action of the 1st respondent taken while the suit was pending.

p. 15

Legal principles established

#
  • The determination of the constitutionality of a gazettement is independent of any finding of unconstitutionality of the statutory provision under which it was gazetted
  • Actions taken unilaterally by a State party in the midst of litigation which may intimidate other litigants are not sanctioned by the court

Court orders

#
  1. 1.The petitioners are granted leave to amend their petition within 21 days of the order, such amendment to take into consideration the contents of the ruling and to exclude prayer (f) in the draft amended petition attached to the application dated 21/5/2025
  2. 2.Such amended petition shall be filed together with a supplementary affidavit in support thereof
  3. 3.The costs of the application shall abide the outcome of the petition
Jurisdiction invoked
Articles 22 and 23(3) of the Constitution; Rule 18 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, "Malik & 8 others v Cabinet Secretary Ministry of Interior & National Administration & 6 others (Environment and Land Petition E015 of 2024) [2025] KEELC 7513 (KLR)", Case Analysis (2025). Motion dated 21/5/2025 in pending petition (petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7513/eng@2025-10-30

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