Weru & 2 others (Suing on Their Own Behalf and Residents of Ninaami Estate, Plot Owners Community Based Organization Certificate No. DSD/26/138/02/135401) v County Government of Trans Nzoia & 3 others (Environment and Land Case E045 of 2025) [2025] KEELC 6971 (KLR)

from further excavating, trenches, and demolition of perimeter walls around the suit property known as L.R. No. 2116/807 or L.R. No. 2116/1025/1-42, pending hearing and determination of this case. 4. The court may be at liberty to issue such other orders or further orders and directions for purposes of meeting the ends of justice and preserving the subject matter herein. 5. That the plaintifis be given unlimited access to the suit premises without let or hindrance pending the hearing of the case. 6. The costs of the application be borne by the 2nd defendant. 2. The application is based on the reasons on its face and in the supporting afidavit of Peter Mburu Weru. It is deposed that the Ninaami Estate comprises 40 units of two-bedroom residential houses built over L.R. Grant No. I.R. 37028, L.R. No. 2116/807 measuring 2.66 Ha, a copy attached as PMW-1(a)(b), which was made to the Municipal Council of Kitale on 12/10/1982, upon a request to establish a residential housing scheme. 3. It is deposed that the defunct Municipality Block 6/93, which was adjudged to be prison land, the same emboldened the 2nd defendant to come for their land by destroying the perimeter fence and digging trenches around the houses as per photos marked as annexure PMW-5(a)-(c). 4. The plaintifis depose that the 2nd defendant has gone further and written to the Transwasco Company, the water providers, and the Kenya Power and Lighting Company provider to Trans Nzoia residents to disconnect water and sewerage services to the plots as a prelude to demolition of the structures as per letters dated 5/9/2025 and marked PMW-6(i) and (ii). 5. The plaintifis depose that the two letters confirm that the 2d defendant appreciates that the plaintifis are in occupation of the suit land, yet they intend to move and demolish the structures without due process; otherwise, apart from the referenced judgment, the 2nd defendant has no other judgment against any of the plaintifis. 6. The plaintifis depose that despite being on the suit land pursuant to valid sales, coupled with genuine and authentic titles to their properties, the 2nd defendant has, in contravention of the Constitution and statutes, and without any form of warning or legal authorization, embarked on a well-planned constructive eviction by threatening to essential services and demolishing the houses. 7. The plaintifis depose that the municipal council of Kitale partnered with the Kenya National Assurance Co. Ltd in receivership to construct the 40 units and sold them to Kenyan who could afiord them, hence the reason the grant shows that as per entry No. 2, the title was charged to KNAC Ltd, who were the developers of the houses, subdivided into 40 subtitles ranging from L.R No. 2116/807/2-37, all subject to the charge on the mother title. 8. The 1st plaintifi deposes that he owns No. I.R 81429 LR No. 2116/807/37, which he purchased from one Kirit Patel, who had purchased it from the 1st defendant herein as per annexure PMW-2(a)-(h). 9. The 1st plaintifi deposes that he has also attached copies of titles No. I.R. 81410 and 81411 L.R. 2116/807/12 and 13, which were purchased by the late William Chemoiywo Koross, following the same route, as annexures marked PMW-3(i)-(xvi). 10. The plaintifis depose that since 2024, the 2nd defendant has wanted to take over the land under the guise that it falls on prison land, which prompted them to write to various government agencies, all reacting with a reassurance that the letter they hold is valid and lawful. Attached are copies of letters dated 8/4/2022 and 12/9/2025, marked as annexure (a) and (b). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6971/eng@2025-10-15 2

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11. The plaintifis depose that following the judgment in Kitale ELC No. 153 of 2016, involving the 2nd defendant, the foregoing acts of the respondent speak of impunity on the part of the government agency, which is bound by Article 10(1)(c) of the Constitution, to uphold national values and principles of governance. 12. The plaintifis urge the court to grant the reliefs sought to protect them and their investments as guaranteed by Article 40 of the Constitution; otherwise, the suit properties belong to them, hence the 2nd defendant should not act beastly to alter the status quo. 13. The application is opposed by the 2nd and 4th defendants through a replying afidavit of Ogutu Leonard Odhiambo, a registered Land Surveyor, working at the Prison Headquarters, sworn on 25/9/2025, denying that the plaintifis are beneficial owners of the parcels of land in issue. 14. It is deposed that Kitale Remand Prison was established during the colonial time as a detention camp and later a remand prison, currently renamed Kitale Medium Prison, occupying part of Kitale Municipality Block 3 and 6, where the suit property falls. 15. The 2nd and 4th defendants depose that the land on which Kitale Medium Prison occupies was reserved for the prison purpose vide Legal Notice No. 721 of 1961 and 751 of 1963, measuring 159.01 acres as per attached notices marked OLO-1A and 1 B. The 2nd and 4th defendants depose that the encroachment of the prison land by the plaintifis and many others dates back to the 1980s. 16. It is deposed that as a result of the said illegal subdivisions and encroachment, as per PDP No. KTL 10/96/95 approved plan 393 as provided by the plaintifis; the Prison has been allocated 12 acres and another 12 acres for the GK Remand Primary School, hence reducing its gazetted land from 159.01 acres to 24 acres. Otherwise, the plan provided here by the plaintifis does not refiect the actual geoposition of the features as they are on the ground. 17. The 2nd and 4th defendants depose that following the presidential directive in January 2024 to relocate the Kitale Medium Prison to Kitale Main Prison, for land for the expansion for Kitale town, the prison authority in collaboration with the Trans Nzoia County Security Committee, a demarcation exercise of the gazetted prison land was conducted relying on the survey maps of the abuttal and over-laid on the google earth which resulted to satellite imagery attached as OLO-2. 18. Further, it is deposed that following the presidential directive on 5/12/2022 to survey and title all prison parcels of land all over Kenya, there was a successful demarcation of the prison land measuring 159.01 acres. Attached is the directive marked OLO-3(a), (b), and (c). 19. The 2nd and 4th defendants depose that it was as a result of the above-mentioned exercise that the afiected persons were identified for a peaceful engagement process of vacating the land to enable the prison authority to process its title upon successful cancellation of the illegal titles. 20. The 2nd and 4th defendants depose that on several occasions the oficer in charge of Kitale Medium Prison ha engaged the plaintifis and others who have encroached the prisons land for an amicable solution, but the plaintifis have resulted to courts intervention, otherwise, others have requested for more time to move out peacefully from the gazetted prison land as per letters annexed as OLO-4(a) and (b). 21. The 2nd and 4th defendants deny the alleged dug trenches or threat to cut ofi essential services such as water and electricity. The 2nd and 4th defendants depose that the prison facility is a protected area that requires heightened security measures with controlled movement in and out of the facility using https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6971/eng@2025-10-15 3

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a single point of entry with the permission of the oficer in charge, who is duty-bound to ensure the security procedures are upheld by reinforcing all the porous entries leading to the prison facility. 22. The 2nd and 4th defendants depose that L.R. No. 2116/807 is part of the gazetted Kitale Medium Prison land falling under Block 3, which has never been degazetted or otherwise lawfully alienated, hence the certificate of lease obtained by the plaintifis is illegal and irregularly acquired. 23. The 2nd and 4th defendants depose that the plaintifis have tendered no evidence to demonstrate that the suit property is distinct from the 159.01 acres of land reserved for Kitale Prison; otherwise, they obtained the titles unprocedurally, and where the plaintifis occupy is where the GK Remand Primary School is situated since the establishment of the prison facility, otherwise, the survey plan FR. No. 160/192 produced by the plaintifis confirms that the suit property was an illegal excision of government land, which has been illegally subdivided into 174 parcels (60 of them out of Block 6 and 114 from Block 3), all allocated to private parties. 24. The 2nd and 4th defendants depose that there are several court decisions cancelling all the entries and titles that were unprocedurally issued on gazetted Kitale Medium Prison land, such as Kitale ELC No. 153 of 2022 and ELC No. 115 of 2018, attached as OLO-6(A) and (B). 25. The 2nd and 4th defendants depose that the plaintifis have failed to establish a prima facie case with a high chance of success, as they have not shown that there was a de-gazettement of the suit property, thus making it available for allocation. 26. The primary pleading by the plaintifis is the plaint dated 16/9/2025. The plaintifis seek: a. Permanent injunction restraining the defendants either jointly or through their servants and or assignees from interfering with the `plaintifis’ possession of LR No. 2116/807/ (subdivision 2116/1025/1-42), all inclusive. b. Declaration that the manner in which the plaintifis acquired the suit property and took possession was and is legitimate and lawful. c. All manner of work being undertaken by the 2nd defendant or any other defendant, from digging trenches, demolition, and eviction, shall be halted until ownership is determined. (d) Damages for breach of property rights. 27. The plaintifis bring the suit on their own behalf and the residents of Ninaami Estate Plot Owners Community, based organization's Certificate No. DSD/26/138/02/135401. 28. From the verifying afidavit and the accompanying documents, the court finds no authority to sue, plead, and prosecute given to either the 1st plaintifi or the three plaintifis to sue on behalf of the rest of the plaintifis. Equally, the court finds no leave which was sought and granted to the plaintifis to bring a representative suit. 29. More importantly, the detailed plot owners alleged to own 40 units of Ninaami Estate have not been pleaded in the body of the plaint. In the absence of leave to file a representative suit and or authority to swear both the verifying and supporting afidavits to the plaint and the notice of motion, the court finds that the 1st plaintifi cannot speak for or act on behalf of the 2nd and 3rd plaintifis and, by extension, the alleged plot owners of Ninaami Estate. Again, the plaintifis purport to bring the suit on behalf of a community-based organization. 30. Locus standi refers to a right to be heard. A person must have suficient interest to sustain a stand to sue in a court of law. See Alfred Njau & Others -vs- City Council of Nairobi [1982] KAR 229. Under https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6971/eng@2025-10-15 4

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what law the CBO is registered is not pleaded. The capacity that the plaintifis hold in the CBO is not pleaded. Authority by way of minutes or board resolution has not been attached. Without disclosing whether the plaintifis are oficials and if they were also registered as such with any government agencies, the plaintifis cannot possibly represent or act for the plot owners. See Audu Akuru A. Twiga CBO -vs- Chief Land Registrar: NLC (IP) ELC E013 of 2023 KEELC 20419 [KLR] (4th October 2023) (Ruling). My finding is that the plaintifis can only advance their individual claims and not in a representative capacity. 31. The next issue is whether the plaintifis deserve a temporary conservatory order. In Peter Munya -vsDickson Mwenda Kithinji & Others [2014] eKLR, the court defined conservatory orders as aimed at facilitating ordered functions within public agencies, which, unlike interlocutory injunctions, aim at upholding the adjudicatory authority of the court, in the public interest. Conservatory orders are, therefore, a judicial remedy granted by way of an undertaking that no action of any kind is taken to preserve the subject until the suit is heard by preserving the status quo. 32. In Judicial Service Commission -vs- Speaker of National Assembly & Another [2013] eKLR, the court said that conservatory orders are not ordinary civil law remedies between private individuals and are aimed at keeping the subject matter of the dispute in place since they are remedies in rem as opposed to remedies in personam. The guiding principles to apply are only given on the inherent merit of a case, bearing in mind public interest, the constitutional values, the proportionate magnitudes, and the priority levels attributable to the relevant courses. 33. In BOM Uhuru Secondary School -vs- City County Director of Education & Others [2015] eKLR, the court said that an applicant must demonstrate an arguable prima facie case with a likelihood of success and show, in the absence of a conservatory order, that he is likely to sufier prejudice. 34. An applicant must show that by granting the order, it will enhance the constructive value of a specific right or freedom in the Bill of Rights, and if the public interest will be served or prejudiced by the decision, and whether the conservatory order is not issued, the substratum will be rendered nugatory. 35. A prima facie case is defined as one where, looking at the material before the court, a right has been infringed or violated to call for a rebuttal from the opposite side. See Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2003] KLR 125. 36. An applicant must therefore raise a genuine and arguable case, such as that held in David Ndii & Others -vs- Attorney General & Others [2021] eKLR, need not succeed at the main hearing, but one disclosing an arguable issue. In assessing the suficiency of an applicant’s interests, the court, as held in Naftali Ruthi Kinyau -vs- Patrick Thuita Gachure & Another [2015] eKLR, looks into the nature of the complaints regarding the defendant's proposed activities 37. What the plaintifis are alleging is that they hold a genuine and valid certificate of leases issued to them by the government through the predecessor in title of the 1st defendant, which they have developed and occupied for many years. 38. The 2nd and 4th defendants, on the other hand, dispute the legality of those titles for the land had been reserved as prison land and hence was never de-gazetted to be available for alienation in favour of the 1st defendant and by extension to third parties. 39. The 2nd and 4th defendants assert superior title to the land, which they have set in motion measures to reclaim following the demarcation process courtesy of the presidential directives. 40. Repossession of public, private, and community land occupied by trespassers must adhere to the law set under Section 152A-I of the Land Act. Section 152A-I of the Land Act provides that a person https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6971/eng@2025-10-15 5

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unlawfully occupying private, public, and community land must be served with a 90-day notice to vacate. There is a relief against a notice of eviction under Section 152F of the Land Act. 41. A court may give an appropriate relief to such an applicant depending on the circumstances of the case. The law also allows the owner of the land to approach the court for eviction orders. In Ongera & Others -vs- Mwakwae Civil Appeal E246 of 2022 [2025] KECA [KLR] (21st March 2025) (Judgment), the court said that Article 40 of the Constitution as read together with Section 26 of the Land Registration Act are only meant to protect persons who genuinely enter into agreements for sale or transfer of land and who can establish their bona fides in the transaction, but not those crooks who criminally interfere with government land records. 42. The plaintifis take the view that the house(s) were developed by KNAC Ltd in receivership in conjunction with the predecessors of the 1st defendant. The defendants have not denied those facts. Equally, the defendants have not demonstrated that they have issued an eviction notice as per the law. 43. In Kenya Railways Corporation -vs- Birah & 14 others (Civil Appeal E206 of 2021) [2025] KECA 545 (KLR) (21 March 2025) (Judgment)The court said that the legal provision for eviction from public land under Section 152G of the Land Act requires a notification in writing by notice in the gazette, and in one newspaper with nationwide circulation, and by radio announcement in a local languages for at least three months. 44. In my view, the plaintifis have established a prima facie interest or right. They hold certificates of title which have not been cancelled, invalidated, or impeached before a court of law. A statutory procedure for eviction or recovery of the land specific to the plaintifis has not been undertaken by the defendants. Respect for human rights, fairness, and dignity must be observed when carrying out evictions or demolitions. 45. These are the bare minimum in the Constitution and Statutory law on fair administrative acts. See Kenya Airports Authority -vs- Mitu-Bell Welfare Society & 2 others,[2016] eKLR. It is against public interest to infringe on the right to property without adherence to the law. I think the plaintifis in the circumstances deserve preservation of the substratum of the suit until the same is heard and determined. 46. The upshot is that I allow the reliefs sought to last for one (1) year only. Prayers 3 and 5 are also allowed. 47. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 15TH DAY OF OCTOBER 2025. In the presence of: Court Assistant - Dennis Ogutu for 1st Defendant/Respondent - present Mbugu for plaintifi/applicant – present Chilaka for 2nd and 4th defendants – absent Obiho for 3rd Defendant – present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6971/eng@2025-10-15 6

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