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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 8598 (KLR)

Shitanda v Governor, Nairobi City County & another; Enterprises (Interested Party) (Environment and Land Petition E041 of 2025) [2025] KEELC 8598 (KLR)

Environment and Land Court of Kenya
10 December 2025
COChristine Ochieng
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop construction of container stalls on disputed Nairobi public land, saying the petitioner offered only speculation, not evidence.

What this practically means

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Executive summary

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This is a ruling on the Petitioner's Notice of Motion dated 4th June 2025 seeking interim injunction and conservatory orders restraining the Respondents and the Interested Party from continuing construction, erection or occupation of container stalls on L.R. No. 2322/2, a designated public utility space within the Nairobi CBD, pending hearing of the Petition. The Petitioner alleged irregular allocation of the public land to the Interested Party without competitive bidding as required under the Public Procurement and Asset Disposal Act and without public participation contrary to Articles 10 and 201 of the Constitution. The Respondents opposed, relying on a letter dated 26th May 2025 by which the Nairobi City County Government nullified the construction approval and affirmed its own proprietorship and occupation of the property for expansion of its public storage facility. The Interested Party's proprietor denied any application for, or allocation of, the property, and suggested fraudulent use of its name by third parties. Applying the Supreme Court's principles in Gatirau Peter Munya and the requirement in Board of Management of Uhuru Secondary School that a prima facie case be beyond speculation and show likelihood of success, the court found no arguability of the Petition, no evidence of success, and no proper demonstration of an infringement, the application being speculative. The application was dismissed with costs in the cause. Judgment delivered at Nairobi on 10th December 2025 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the threshold for conservatory orders was met

Holding

The application failed: no arguability, no evidence of success, and the alleged infringement was speculative

Reasoning

The court applied the Supreme Court's Munya principles as augmented by the Board of Management of Uhuru Secondary School case, requiring not just a prima facie case but a likelihood of success beyond speculation. Faced with the Respondents' letter of 26th May 2025 nullifying the construction approval and the Interested Party's denial of ever applying for or being allocated the suit property, the Petitioner's allegations of unlawful allocation lacked adequate proof, so the conservatory orders could not issue.

p. 4

Legal principles established

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  • Conservatory orders are public-law remedies granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law irreparable harm or prospects of success
  • A prima facie case alone is insufficient for a conservatory order; there must be a likelihood of success beyond a speculative basis

Court orders

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  1. 1.The Notice of Motion application dated 4th June 2025 is disallowed as unmerited
  2. 2.Costs will be in the cause
Jurisdiction invoked
Original constitutional jurisdiction over the Petition and the interim conservatory orders sought therein

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, "Shitanda v Governor, Nairobi City County & another; Enterprises (Interested Party) (Environment and Land Petition E041 of 2025) [2025] KEELC 8598 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8598/eng@2025-12-10

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