Nthekani v Nairobi County Government & another (Environment and Land Case E208 of 2024) [2025] KEELC 6364 (KLR)

i. That the suit property was within the riparian reserve of Nairobi River based on the guidelines provided for in the Water Resources Regulations and that the applicant had seriously encroached on the riparian land. ii. That under Article 62 (1) (i) of the Constitution of the Kenya, 2010, rivers and riparian reserves are public land vested in the National and County Governments and the Suit land being Riparian Land was therefore public land and should be vested in the 1st Respondent. iii. The Plaintifi/Applicant is therefore not the registered and/or beneficial owner of the suit land has no proprietary rights and therefore lacks interest and locus standi to file the suit herein 3. Both parties filed submissions. Counsel for the Applicant submitted that the application is not opposed as the grounds of opposition do not raise any legal issues. Further that the Respondents did not file any Replying Afidavit. 4. Counsel for the Respondent on his part submitted that the Applicant has no locus standi to file the application as he has not produced any ownership documents. Counsel submitted that the Applicant did not have any right to be heard. It was further his contention that the Applicant had not proved that he had prima facie case as he has no proprietary rights and if they do exist were illegally obtained. 5. The twin issues for determination is whether the Applicant has locus and whether the court should grant the status quo orders sought. Before addressing this issue the court addresses the issue raised by the Applicant that the application is not defended. Order 51 rule 14 of the Civil Procedure Rules sets out the mode of opposing an application thus; “Any respondent who wishes to oppose any application may file any one or a combination of the following documents — (a) A notice preliminary objection: and/or; (b) Replying afidavit; and/or (c) A statement of grounds of opposition;” 6. A party can thus opt such as was the case in the instant case, to oppose an application by way of grounds of opposition only. In such a case, the facts are uncontroverted and the court considers whether the grounds of law raised have merit. This was the holding in the case of Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR in which the court held that grounds of Opposition are only deemed to address issues of law 7. The first issue raised is that the Applicant has no locus as he has not produced any ownership documents. The issue of ownership is the issue that the court will be delving into at the hearing of the matter. It is not a matter that the court can summarily determine and decide to lock a party out from being heard. 8. This brings to the fore the question of whether the application is merited. The orders sought are for status quo rather than injunctive orders. In the case of Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel Mombasa Misc. Civil Application (JR) No.26 of 2010 Muriithi J defined a status quo order as an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case.( emphasis mine) 9. The Plaintifi has stated that his apartments which he constructed on the suit property have been demolished by the Defendant who has now threatened to take over his land. It is only fair that as the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6364/eng@2025-05-22 2

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matter proceeds for hearing there should be no change in the legal status of the property. Consequently, the application is allowed in the following terms; a. The current status relating to ownership should be maintained pending the hearing and determination of the suit. b. The costs shall abide the outcome of the main suit RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Gathira for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6364/eng@2025-05-22 3

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