Molo River Roses Limited v Korir & 8 others

a. Spent b. Spent c. That pending the hearing and determination of the main Petition, this Honourable Court be and is hereby pleased to issue a conservatory order by way of injunction restraining, prohibiting and/or stopping the Respondents either jointly or severally by themselves, their agents, servants, or assigns from acting on and/or in any manner whatsoever from creating any access road or path, interfering with the boundaries, or in any way dealing with and/or interfering with Petitioner’s benecial use and quiet enjoyment of the parcel of land known as Rongai/Lengenet Block 6/11. d. That the 8th Respondent be and is hereby ordered to ensure full compliance of court orders. e. That this Honourable Court be pleased to certify that this petition raises weighty constitutional issues on violation of fundamental rights and freedoms specically Article 40 of the Constitution of Kenya, 2010 and that the same should proceed to hearing and determination of the main petition on a priority basis. f. That the costs of this application be provided for. 3. The application is supported by the annexed adavit of Andrew Wambua sworn on 2nd June, 2025, where he deponed that he is the Managing Director of the Petitioner who is the registered proprietor of the parcel of land known as Rongai/Lengenet Block 6/11 measuring approximately 288.93 hectares having obtained title to the property on 19th October, 2016. 4. Mr. Wambua further deponed that the Petitioner obtained the said parcel of land after subdivision of parcel of land known as LR. NO 487/26/4 which parcel was registered in the name of His Excellency Daniel Toroitich Moi (Deceased). Further that in 2009, His Excellency Daniel Moi sought to purchase freehold interest over the said parcel of land that he had acquired in 1971, which application was approved vide a letter dated 25th November 2009 5. It was the deponent’s case that pursuant to the approval, subdivision was done into eight portions and re-alignment of the road where His Excellency Moi, donated about 35 acres of land to host the new Nakuru –Ravine Road. That on 29th September 2011 the District Surveyor wrote a letter of No. Objection to the to the proposed subdivision and road re-alignment which was forwarded to the Deceased. 6. Mr. Wambua also stated that the oce of the 3rd Respondent vide a letter dated 21st March 2012 informed the proprietor of the parcel of land that his application had been allowed but on condition that he surrenders the original title to the property in exchange of the resultant eight new titles and the government road free of any costs. 7. He further stated that the scheme plans that were forwarded only contained one road which did not cut across the suit land and that there was no proposal for a foot path or any access road on the parcel of land, which is conrmed by the Registry Index map (RIM). 8. According to the deponent, on 6th June 2025, the Petitioner became aware of a letter by the 1st Respondent (The Director of Survey) addressed to the Surveyor who undertook the subdivision, purporting to cancel the approved cadastral survey plan F/R No. 381/8, on the grounds that an alleged 30-meter road reserve had not been accommodated in the 2016 plan. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 2

page 2 of 15

9. Mr. Wambua further deponed that the petitioner was neither issued with a notice nor a hearing prior to the decision being communicated in the letter which is a violation of Article 47 of the Constitution and Fait Administrative Action Act. 10. The Petitioner’s Managing Director deponed that it is unjust and unfair for the 1st, 5th and 7th Respondents to forcefully claim to resurvey the Petitioner’s parcel of land and create an access road without following the due procedure whereas there are access roads in the area serving the members of the public. It was further his deposition that there have been threats issued by the 1st, 5th and 7th Respondents to the Petitioner with the aid of the 3rd Respondent and approval of the 4th Respondent who may at any time forcefully and in total disregard of the law trespass onto the Petitioner’s land, and urged the court to grant the conservatory orders as prayed. 11. Wilfred Muchae, led a Replying Adavit sworn on 27th June, 2025, where he deponed that he is a Deputy Director of Survey attached to the oce of the Director of Surveys, Ruaraka under the Ministry of Lands and Physical Planning. He enumerated the process of preparation of deed plans either by government or licensed Surveyors, and in cases where a Deed Plan is prepared by a licensed Surveyor, he/she is required to submit them to the Director of Surveys for signing, sealing and approval. Further that a copy of the Deed Plan is always retained by the Director of Surveys upon release of the Deed Plan to either the licensed surveyor or the National Land Commission. 12. It was his disposition that the survey records related to parcel of land Number Rongai/Lengenet Block 6/11 was part of the subdivision of LR No. 487 as contained in cadastral Survey Plan Number F/R No. 19/25 which gave rise to LR Nos. 487/5 to LR. No. 487/31. That parcel No. LR. No. 487/26 which was the resultant subdivision parcels of LR No 487 was later subdivided into four subdivisions to give rise to LR Nos 487/26/1 No. 487/26/2, No. 487/26/3, and No. 487/26/4. That the parcel No. 487/26/4 was later subdivided into eight parcels, resulting in land parcel Nos. 487/173 – LR. No. 487/180 as well as a road parcel. 13. Mr. Muchai further stated that the subdivision parcel LR No. 487/180 was later renamed and renumbered as parcel No Rongai/Lengenet Block 6/2 following a conversion process from the land registration regime under. The Registration of Titles Act (Cap 281) to Land Registration Act Number 3 of 2012, whereby it was further subdivided into two parcels namely, LR No Rongai/Lengenet Block 6/10 and 6/11 and a road parcel. The deponent gave a detailed background of the parcels of land as seen in the replying adavit which I will not replicate at this juncture. 14. According to Mr. Muchai, the subdivision of LR No 487/26 was to create and provide for 100 feet wide road reserve in Subdivision Surveys contained in Cadatral Survey Plans – F/R No. 12/100 and F/R No. 19/25. The 100 feet wide road reserve was to serve as an access road to parcel Nos. LR No 487/26 to 487/31 and any subdivision parcels resulting from these subject parcels. 15. The Deponent further stated that errors were discovered by the Director of Surveys regarding the subdivision of survey of parcel No. LR No Rongai/Lengenet Block contained in Cadastral Survey Plan Number F/R No 423/58- Survey Computation File Number 69027, whereby while M/S J.K. Kauga while undertaking the subdivision survey of parcel No LR No. Rongai/Lengenet Block 6/2 failed to exercise due diligence in carrying out the survey of the subject property regarding gathering all relevant information on previous surveys of the subject property and adjacent properties before conducting the survey, as required under the Survey Act, Cap 299, and Survey Regulations. 16. He also deponed that the non-reference to the data, details and information of previous survey records of the subject property and adjacent properties by M/s J K. Karuga – Licensed Land Surveyor has resulted to an erroneous subdivision survey which has banned land set aside for a 30.48 meter – wide https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 3

page 3 of 15

public road reserve to be part of the Petitioner’s property and now comprising part of parcel No. Rongai/ Lengenet Block 6/11. 17. It was Mr. Muchai’s disposition that the Petitioner’s action of closing the road which previously existed since the year 1915 and served as an access road to parcel Nos LR Nos. 487/26 to 487/31 and any resultant subdivisions has caused considerable inconvenience to the registered owners of L R Nos 487/170 and LR No 487/171 which are resultant subdivisions of LR No. 487/27. That previously with the access road they would travel approximately 2 kilometers while after the closure, they are forced to travel approximately 10.8 kilometers through an alternative access route round the perimeter boundaries of the suit land and urged the court to disallow the Notice of Motion for conservatory orders. 18. Hon. Paul Chebor, the 5th Respondent and a Member of Parliament Rongai Constituency, led a Relpying Adavit sworn on 8th August, 2025, where he deponed that he has read the Replying adavit of Wilfred Muchai the Deputy Director of Surveys which he fully adopted the contents therein. 19. He also stated that the residents of Rongai constituency have a right of way through the suit property, a 30.48-meter-wide road reserve having been set aside for public use, remains public land and constitutes an overriding interest. It was his disposition that the residents of Rongai have suered grave inconvenience owing to the non-inclusion of the 30.48-meter-wide public road reserve in the subdivision exercise conducted by M/S. J K Karuga licensed Land Surveyor and the subsequent action by the Applicant to close the access road. 20. He further deponed that the Applicant is not entitled to the orders sought as the Applicant has grossly misrepresented facts that the access road never existed and that the Respondents are attempting to create a non-existent access road. He therefore stated that the Applicant has not satised the principles for grant of a conservatory order hence the application should be dismissed with costs. 21. Andrew Wambua led a Supplementary Adavit sworn on 7th July, 2025, and deponed that at all material times, prior and after acquisition of the property being Rongai/Lengenet Block 6/11, no access road has ever been shown or designated as alleged by the 7th Respondent on the Registry Index Maps (RIMs) and survey plan F/R No 423/58. He further deponed that the Petitioner followed the due process up to the approval and registration of the survey plan F/R No. 423/58. It was the Petitioner’s Managing Director’s deposition that the Respondent’s intention to cancel the survey plan and or trespass onto the Petitioner’s land is not only substantially unmerited but is also time barred. 22. The second application is the Petitioner’s Notice of Motion application dated 8th September, 2025 which seeks the following orders: a. Spent b. That this Honourable Court be pleased to certify that the Petition herein raises substantial questions of law, bill of rights and interpretation of the Constitution of Kenya and forthwith refer the matter to the Her Ladyship the Chief Justice for the empanelment of a bench of an uneven number of Judges, being not less than three to hear and determine this Petition, pursuant to Article 165 (4) of the Constitution of Kenya, 2010. c. That the Honourable Court be pleased to issue such further directions and/or orders as may be necessary to give eect to the foregoing orders. d. That the costs of this application be in the cause. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 4

page 4 of 15

23. The application is supported by the annexed adavit of Andrew Wambua, the Petitioner’s Managing Director sworn on 8th September, 2025, where he deponed that the Petition raises substantial weighty and complex questions of law under the Constitution based on the interpretation and application of the provisions of Section 31 & 33 of the Survey Act, Cap 299 and Articles 40 and 47 of the Constitution of Kenya on the powers of the Director of Survey to cancel a survey plan upon lapse of the statutory timelines. 24. He further deponed that vide a letter dated 5th June 2025 the 1st Respondent informed the Surveyor who undertook the subdivision of the suit land that the 2016 survey had ignored the road area leading to a ballooned acreage and that the Director of Survey intend to cancel the survey plan despite the fact that titles were issued following approved survey plan F/R No. 423/58 in 2016 which supersedes the survey Plan F/R No. 381 of 2012. 25. Mr. Wambua stated that the Petition not only raises the questions of whether a right or fundamental freedom in the Bill of rights has been denied, violated or threatened but also raises the question on interpretation, and that the Petition meets the threshold for referral to the Chief Justice for empanelment of a Bench of an uneven number of not less than three Judges. He urged the court to allow the application. 26. Hon Paul Chebor, the 5th Respondent led a Replying Adavit sworn on 24th September, 2025, and deponed that the main issue for determination is whether the suit property known as Rongai/Lengenet Block6/11 had an access road reserved for public use hence there is nothing novel in the Petition requiring the empanelment of an uneven number of Judges to hear and determine the petition. He urged the court to dismiss the Application with costs. Petitioner’s Submissions 27. Counsel for the Petitioner led submissions dated 10th July, 2025 and 8th October, 2025, and identied two issues for determination on the application for conservatory orders. On the rst issue as to whether conservatory orders should issue, counsel relied on Article 23(3) of the Constitution, and submitted that the court has jurisdiction to grant any appropriate relief including a conservatory order in instances of allegations of violation or infringement or threats of violation or infringement of a right or fundamental freedom. 28. Counsel relied on the cases of Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others [2015] eKLR, and Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others (2014) eKLR where the court laid down the key principles applicable in determining whether to grant conservatory orders. 29. On whether the Applicant has established a prima facie case, counsel cited the case of Kevin K. Mwiti & Others vs Kenya School of Law & Others [2015] eKLR, and submitted that the supporting adavit enumerated detailed imminent violation of the Petitioner’s constitutional rights to property and fair administrative action, as the Petitioner was not accorded a hearing prior to the decision communicated in a letter dated 5th June 2025. 30. Further that the Petitioner is the registered owner of the suit land and the alleged access road does not exist and that the Respondents do not deny that fact that the Petitioner lawfully owns the suit land. 31. Mr. Kipkoech submitted that unless the Respondents are restrained, the petitioner faces the threat of illegal cancellation of his title deed, which will amount to unconstitutional deprivation of its rights under Article 40(1) of the Constitution. Counsel further submitted that if the orders are not granted, the substratum of the petition will be lost and the Applicant will suer prejudice as massive water the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 5

page 5 of 15

Respondents who have already deployed machinery from the National Youth Service would destroy works, a dam and green houses. 32. According to counsel, the Petitioner is likely to suer prejudice which extends beyond the Petitioner to its employees and their dependents and relied on the cases of Bundid & another vs Ministry of East African Community (EAC), the Asals and Regional Development & 3 others [2024] KEHC 3479, and Republic V. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya [2014] on the issue of public interest which must conform to the Constitution and the law as the rule of law is one of the national values. Counsel urged the court to allow the application with costs. 33. On the second application for empanelment of an uneven bench of not less than three Judges, counsel relied on Article 165 (4) of the Constitution which provides that any matter certied by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three assigned by the Chief Justice. 34. Mr. Kipkoech submitted that the petition and the application raises substantial questions under the law as Section 31(2) of the Survey Act limits the time within which the Director of Survey may require correction of a submitted plan to twelve months from the date the plan was sent to the 1st respondent for authentication. Further that Section 33 of the Survey Act gives the Director of Survey power to cancel authentication but prescribes the process and, critically requires notication to the registered owner and other interested persons upon cancellation. 35. It was counsel’s submission that the instant cases raise substantial questions of law and that the Respondents will suer no prejudice if this matter is referred to the Chief Justice for empanelment of a bench of an uneven number of judges not less than three. Counsel relied on the cases of Peter Solomon Gichira vs The Attorney General and Another Petition No 313 of 2015, Community Advocacy Awareness Trust & Others vs The Attorney General & Others, High Court Petition No. 243 of 2011 and Okiya Omtata & Another vs Anne Waiguru. 1ST, 2ND, 3RD, 4TH, 6TH, 7TH. 8TH AND 9TH RESPONDENTS’ SUBMISSIONS 36. Counsel for the Attorney General led submissions dated 15th August, 2025 and opposed the application for conservatory orders. Counsel relied on the replying adavit sworn by Wilfred Muchai the Deputy Director of Survey attached to Ruaraka, and submitted that the prayer of conservatory orders under Article 23 of the Constitution of Kenya cannot issue taking into account the obtaining factual position and that the Petitioner has not met the threshold. 37. Mr. Allan Kamau, reiterated the contents admitted by the Petitioner and the enumerated facts in Wilfred Muchai’s adavit explaining the background of the case and the suit parcels of land and submitted that conservatory orders by their legal nature are not meant to undo a situation or the status of a subject matter and relied on the case of Judicial Service Commission vs Speaker of the National Assembly & Another [2013] eKLR, 38. That the Petitioner prays for restraining the Respondents from cancelling the relevant plans, but it is clear from the letter dated 5th June 2025 that the cancellation had already been eected as per paragraph 4 that: “ Your survey, which is ultimately represented by survey Plan F/R No. 423/58, has therefore been found to be in error. Although this survey is beyond the time limits as stipulated in the Survey Act Cap 299, section 31 subsection (2) , section 33 still empowers this oce to cancel the survey. You are hereby informed of this action of the radical step…” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 6

page 6 of 15

39. It was counsel’s submission that the action is deemed regular unless rebutted upon merit consideration of the petition, and cited the case of Chief Land Register & 4 others vs Nathan Tirop Koech & 4 others (2018) where the presumption of regularity was armed by the Court of Appeal. 40. On the prayer for a prohibitory order, counsel submitted that the same cannot issue in respect to executed actions and in itself amounts to nal orders which cannot issue at an interlocutory stage, and relied on the cases of Olive Mwihaki Mugenda & Another vs Okiya Omtata Okoiti & 4 Others [2016] eKLR, Cabinet Secretary, Ministry of Health vs Joseph Enock Aura & Others [2024] KECA 1195 (KLR). 41. Counsel further submitted that the Application does not meet the test for the grant of conservatory orders as set out in the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR, and urged the court to navigate the thin line by avoiding to delve onto the merits of the Petition prematurely before hearing the parties on merit but at the same time having an overview of the substance of the petition itself and whether a prima facie case has been made to warrant the grant of conservatory orders and relied on the case of Muslim for Human Rights (Milimani) & 2 others vs Attorney General & 2 others (2011) eKLR. 42. According to counsel, the Application has a public interest consideration and relied on the Supreme Court case of Hermanus Phillipus Steyn vs Giovani Gnecchi- Ruscone, Supreme Court Application No 4 of 2012, National Super Alliance (NASA) Kenya vs Cabinet Secretary for Interior and Coordination of National Government & 3 others [2017] eKLR, where the court stated that the meaning of matter of general public importance may vary depending on the context. 43. Counsel submitted that the Petitioner’s application is premised on the development of commercial ower farm, green houses, a dam, irrigation systems, workers housing and administrative oces which establishment employs over 1000 workers, while the Respondents argue a more public interest consideration premised on time factor, public reserved road and access road to other ensuing subdivisions. 44. Counsel stated that superior courts in Kenya have armed in a number of cases that public interest takes precedence over private interest and relied on the cases of East African Cables vs Public Procurement Complaints, Review and Appeals Board & Another [2007] eKLR, and Cabinet Secretary Ministry of Health vs Aura & 13 others [2024] KECA 2 (KLR). 45. Counsel also submitted on the principle of proportionality which requires the administrative authority, when exercising discretionary power to maintain a proper balance between any adverse eects which its decision may have on the rights, liberties, or interests of persons and the purpose which it pursues and cited the cases of Attorney General vs Sumair Bansraj [1985] 38 WIR 286, R (Daly) vs Secretary of State For Home Department (2001) 2 AC 532 and Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 others [2016] KLR and urged the court to dismiss the Application with costs. 46. On the second application as to whether the Petition raises any substantial point of law bearing on public interest as required by Article 165 (3) (b) and (d), counsel submitted that the constitution of a bench is not a matter of right but one of necessity. Where there is a signicant matter of public importance that raises novel constitutional issues or where there are conicting decisions of courts that require harmonization. Counsel relied on the case of Community Advocacy Awareness Trust & Others vs The Attorney General & Others, High Court petition No. 243 of 2011, where the court stated that the Constitution of Kenya, does not dene “substantial question of law, it is left to the individual judge https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 7

page 7 of 15

to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief justice to appoint an uneven number of judges not being less than three to determine the matter. 47. Mr. Kamau stated that the Petition does not raise any substantial questions of law and equally does not have a signicant bearing on public interest and relied on the cases of Kinyanjui V Attorney General & another, Omollo & 18 Others ( Interested parties) ( Petition 74 of 2011) ( 2012) KEHC 5411 (27 September 2012) ( Ruling) where the court held that substantial question must take into account the provisions of the constitution as a whole and need to dispense justice without delay particularly given a specic fact situation, and each case must be considered on its merits by the judge certifying the matter. 48. Counsel stated that the question of interpretation of Article 40 and 47 of the Constitution and Sections of the Survey Act are questions and issues that single judges of superior courts deal with within their daily discharge of their constitutional mandate under Article 165 (3) of the Constitution. Counsel cited the cases of Philomena Mbete Mwilu V Director of Public Prosecution, Director of Criminal Investigation, Chief Magistrate Court (Ant- Corruption) Nairobi, Attorney General V Stanley Muluvi Kiima (2018) KEHC 3432 (KLR). 49. Lastly, it was counsel’s submissions that the Applicant has not demonstrated how the petition raises substantial questions of law, a question of immense jurisprudential moment, or a question of grave uncertainty of the law, which has not been covered in previous decisions by the court to warrant the empanelment of a bench. Counsel urged the court to dismiss the application with costs, as it is an abuse of court process. 5Th Respondent’s Submissions 50. Counsel for the 5th Respondent led submissions dated 11th August, 2025, and 16th October, 2025. In the submissions dated 11th August, 2025, counsel identied the following issues for determination: a. Whether the Application establishes a prima facie case with a likelihood of success? b. Whether the denial of the conservatory orders sought will prejudice the Applicant? c. Whether the substratum of the main Petition will be rendered nugatory should the court disallow the present application? d. Whether allowing the present application is in line with the public interest dogma? 51. On the rst issue, counsel submitted that the application does not establish a prima facie case with likelihood of success and relied on the cases of Centre for Rights Education and Awareness and 7 others vs The Attorney General [HCCP No 16 of 2011] and Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others [2015] KEHC 2174 (KLR). 52. Counsel submitted that the application is based on mere allegations and misrepresentation of facts as the question of ownership of the suit land is not in issue and therefore immaterial. The issue revolves around the assertion that the suit property has never had an access road cutting across it. 53. The 5th Respondent submitted that the records presented by the applicant conveniently fail to show the public access road which has been in existence since 1915, and that the previously examined, approved and authenticated survey records reveal that a 30.48-meter–wide public road reserve was set aside for public use on the suit property pursuant to cadastral Survey Plans F/R No. 19/25 No 51/5 and F/ R No. 381/8. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 8

page 8 of 15

54. On the second issue, counsel submitted that the Petitioner has not demonstrated any real prejudice as a result of the alleged violations of rights. Counsel relied on the cases of Wilson Kaberia Nkunja Vs The Magistrates and Judges Vetting Board & others Nairobi Constitutional Petition No. 154 of 2016 (2016) eKLR, as cited in Ochoiki vs Cabinet Secretary, Ministry of Health & 3 others [2025] KEHC 12484 (KLR). 55. Counsel further submitted that the Applicant has alleged that its right to property is threatened by the respondents bid to construct an access road for the residents of Rongai constituency but on the contrary it is the residents of Rongai whose right of way has been infringed 56. On the third issue, counsel submitted that should the application be disallowed, the main petition will not be rendered nugatory. Counsel relied on thecases of Reliance Bank Ltd vs Norlake Investments Ltd [2002] 1 EA 27 and Kutoto & another vs Musalia Mudavadi, Prime Cabinet Secretary and Acting Cabinet Secretary for Interior and National Administration & another; Ilmoitanik Ilkitoip Set Elders & 3 others (Interested Parties) [2025] eKLR. 57. On the fourth issue, counsel submitted that allowing this application will go against the principle of public interest, as the residents of Rongai constituency will continue to suer inconvenience of using 10.8 km instead of 2 km to access the main Ravine-Kampi Ya Moto Road. Counsel relied on the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR. 58. In respect of submissions dated 16th October, 2025, counsel identied the following issues for determination: a. Whether the Petition raises any substantial point of law bearing on public interest as required by Article 165 (3) (b) and (d)? b. Whether there is any uncertainty of law with regards the creation of access road on the suit property? c. Whether the Applicant has demonstrated with the required particularity the substantial questions of law to warrant the sought certication? 59. Counsel submitted that the Petition does not raise any substantial point of law that transcends the particular circumstances of the present cases. Further that there are no uncertainties with the law on creation of access road on the alleged private property. 60. It was counsel’s submission that the Applicant has not demonstrated the substantial, weighty and complex issues regarding Articles 40 and 47 of the Constitution that requires empanelment of a bench to hear and determine the issue. Counsel relied on the cases of Hermanus Phillipus Steyn vs Giovanni Gnechi-Ruscone [2013] eKLR, Okiya Omtatah Okoiti & Another vs Anne WaiguruCabinet Secretary, Devolution and Planning and 3 others [2017] eKLR, Harrison Kinyanjui vs Attorney General [2012] eKLR, Santosh Hazari vs Purushottam Tiwari [2001] 3SCC 179, Hopf vs Director of Survey & 2 others: Sakaja & 2 others (Interested Parties) (Suing on their own behalf and on behalf of 50 others) [2023] KEELC 22012 (KLR) and Karunu & another vs Kimemia & 3 others [2024] KEELC 3967 (KLR) and urged the court to dismiss the application with costs. Analysis And Determination 61. This ruling is in respect of two applications in the consolidated petitions, for the grant of conservatory orders and for referral to the Chief Justice for empanelment of a bench of an uneven number of judges not less than three to hear and determine this petition on the ground that it raises complex, substantial issues of law with a bearing on public interest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 9

page 9 of 15

62. 63. The issues therefore are: a. Whether the Applicant has established a prima facie case for the grant of conservatory orders, b. Whether the Applicant has met the threshold for grant of the orders sought and c. Whether the Petition herein raises substantial questions of law for referral to the Chief Justice for the empanelment of a bench of an uneven number of Judges, being not less than three to hear and determine this Petition, pursuant to Article 165 (4) of the Constitution of Kenya, 2010 The principles for grant of conservatory orders are well settled as was held in the Supreme Court Case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows: “ Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” 64. 65. Similarly, in the case of Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board & others, (2016) eKLR the court summarized three main principles for consideration on whether to grant conservatory orders as follows: a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suer prejudice as a result of the violation or threatened violation of the Constitution. b. Whether, if a conservatory order is not granted, the petition alleging violation of, or threat of violation of rights will be rendered nugatory; and c. The public interest must be considered before grant of a conservatory order. In the case of Board of Management of Uhuru Secondary School vs. City County Director of Education and 2 others (2015) eKLR, the Judge stated that for grant of conservatory orders the application must meet the following conditions: “ a) First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suer prejudice. b) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specic right or freedom in the Bill of Rights. c) Thirdly, the Court should consider whether, if an interim conservatory orders is not granted, the Petition or its substratum will be rendered nugatory. d) The nal principle for consideration is whether the public interest will be served or prejudiced by the decision to exercise discretion to grant or deny a conservatory order. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 10

page 10 of 15

66. This Petition is in respect of an access road, which is contested by the Petitioner and the Respondents. Each party has a dierent version as to whether there existed a public access road on the suit land. The Petitioner asserts that there has never existed a public access road on the suit land while the respondents claim that the Petitioner annexed a 30.48-meter–wide public road reserve which has been in existence since 1915. The Respondents have given an elaborate history and background of the acquisition and subdivisions with resultant subdivisions to the suit land which is in tandem with the Petitioners records which only dier at the point where the Petitioner denies the existence of a public access road. 67. I note from the Supporting Adavit of the Managing Director of the Petitioner, that the history he has given is in respect of the records he got from the original owner His Excellency Daniel Moi (Deceased), where he narrated the process from acquisition, conversion, subdivision approvals, surrender of a ravine–Nakuru road, and counter subdivisions. 68. On the issue whether the Petitioner has established a prima facie case for grant of a conservatory order, the Applicant must demonstrate that it has an arguable case which raises a constitutional issue which is not frivolous and has a likelihood of success after the petition is fully heard. The Applicant must also establish or show that there is real or imminent danger, if the order is not granted, there may be violation of the rights alleged to be in danger of being infringed. 69. In this instant Petition, what are the rights that are likely to be infringed by the Respondents, is there any real or imminent danger of the right to property or right to information being infringed? Mere generalization of alleged rights that are likely to be infringed without tangible demonstration of the imminent danger may not earn a person or an applicant conservatory orders. 70. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: “ If there is no prima facie case on the point essential to entitle the plainti to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief. 71. These vast lands have a long history, of subdivisions and it is the practice that when subdivisions are done, there are provisions for public utilities especially in big tracts of land like access roads. This is not to generalize as a norm but there has to be access. The Applicant has not denied that the residents of Rongai have been using the access road for a long period of time, until the access was closed, as deponed by the 5th Respondent who stated that the residents now have to use a longer route of 10.8 Kilometers around the suit parcel’s boundary instead of 2 kilometers. 72. As much as the court is only looking at the application whether the Petitioner has met the threshold for grant of conservatory orders, public interest comes into play in favour of the Residents of Rongai who may have been aected by the closure of the purported public access road. The denial of grant of the conservatory orders will not render the petition nugatory or mute as the issues as to whether there existed an access road on the suit parcel of land, the issue of the erroneous inclusion of the 30.48-feet– wide meter public road reserve onto the suit parcel of land, whether the Director of Surveys has the power to cancel a survey plan after twelve months are still outstanding. This does not mean that the court has already dealt with the dispute. 73. What prompted the Petitioner to come to court, is it the issue of trespass or the purported cancellation of the survey plans, or the alleged imminent violation of the right to property. The court will grapple with these issues during the hearing of the Petition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 11

page 11 of 15

74. In the case of Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR. the court stated as follows: “ The court must be careful for it not to reach nal conclusion and to make nal ndings. By the time the application is decided; all the parties must still have the ability and exibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or nality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.” 75. Lord Diplock in American Cyanamid vs. Ethicon Limited case (Supra) made it easy on the explanation of a prima facie case, that “if there is no prima facie case on the point essential to entitle the plainti to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief. I will also adopt this description and end with a note that there is no substratum to preserve a conservatory order will do more harm than good. 76. This is a matter that involves an access road and the best way to deal with this issue is to fast track the hearing of the main petition. I nd that the application lacks merit and is therefore disallowed with each party bearing their own costs. 77. On the second application on the issue as to whether the Applicant has met the threshold for empanelment of an uneven number of judges under Article 165 (4) of the Constitution of Kenya. 78. Article 165(4) of the Constitution, provides for the empanelment of a bench as follows: “ Any matter certied by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, not less than three, assigned by the Chief Justice.” 79. It follows that for a matter to be heard by a bench, the Court must certify it as one raising a substantial question of law that falls under Article 165 (3)(b), or (d) of the Constitution. Article 165(d) provides as follows: Subject to clause (5), the High Court shall have d) jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of: i) The question whether any law is inconsistent with this constitution; ii) The question whether anything said to be one under the authority of this constitution or of any law is inconsistent with, or in contravention of, this constitution; iii) Any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to constitutional relationship between levels of government; iv) A question relating to conict of laws under Article 191 and v) Any other jurisdiction, original or appellate, conferred on it by legislation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 12

page 12 of 15

80. In the case of Martin Nyaga & others v Speaker County Assembly of Embu & 4 others & Amicus Curiae [2014] KEHC 7962 (KLR) where the court stated: “ …In my view the decision whether or not to empanel a bench of more than one Judge ought to be made only where it is absolutely necessary and in strict compliance with the relevant Constitutional and statutory provisions. In this country we still do not have the luxury of granting such orders at the whims of the parties. Judicial resources in terms of judicial ocers in this country are very scarce. Empanelling such a bench usually has the consequence of delaying the cases which are already in the queue hence worsening the problem of backlogs in this country. I therefore associate myself with the position taken by Majanja, J in Harrison Kinyanjui vs. Attorney General & Another [2012] eKLR that the meaning of “substantial question” must take into account the provisions of the Constitution as a whole and the need to dispense justice without delay particularly given specic fact situation.” 81. What constitutes a substantial question of law is now well settled as seen in the case of Sir Chuntilal Mehta and Sons Ltd Vs The Century Spinning and Manufacturing Co. Ltd 1962 AIR 1314, where the Supreme Court of India dened the elements of a substantial question of law as follows: “ The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially aects the rights of the parties and if so whether it is either an open question in the sense that it is not nally settled by this court or by the Privy Council or by the Federal Court or not free from diculty or calls for discussions of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled, and there is a mere question of applying those principles, or if the plea raised is palpably absurd, the question would not be a substantial question of the law. 82. In the case of Steyn v Ruscone [2013] KESC 11 (KLR), the Supreme Court of Kenya pronounced the governing principles for purposes of certication under Article 163 (4) (b) some of which are relevant in the context of certication under Article 165 (4) of the Constitution of Kenya. The Court outlined the following principles: i. for a case to be certied as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a signicant bearing on the public interest; ii. where the matter in respect of which certication is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a signicant bearing on the public interest; iii. such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination; iv. where the application for certication has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 13

page 13 of 15

83. v. mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certication for an appeal to the Supreme Court; the matter to be certied for a nal appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution; vi. the intending applicant has an obligation to identify and concisely set out the specic elements of “general public importance” which he or she attributes to the matter for which certication is sought; vii. determinations of fact in contests between parties are not, by themselves, a basis for granting certication for an appeal before the Supreme Court. From the Supporting adavit sworn on 8th September 2025, by Andrew Wambua in respect of the application for empanelment of a bench of an uneven number of Judges, he lists the following questions which in his view raises substantial questions of law: a. Whether the Director of survey has the right to cancel a survey plan already authenticated by his oce upon lapse of twelve months provided for under Section 31 (2) of the Survey Act? b. Whether issuance of the letter dated 5th June, 2025 by the 1st Respondent without informing the Petitioner herein who is the registered proprietor of the parcel of land known as Rongai/ Lengenet Block 6/11 who will be aected by the cancellation of the survey plan number FR NO 423 violates the provisions of Article 47 of the Constitution of Kenya, 2010? c. Whether the ultimate cancellation of the survey plan being FR No 423/58 violates the Petitioner’s right to own and or use its property contrary to Article 40 of the Constitution of Kenya? d. Whether the purported cancellation under the guise of correcting an anomaly eight years after presentation and execution by the 1st Respondent can override the statutory limitation of time within which an error on a survey plan can be corrected and the right to property for under Article 40 of the Constitution? 84. Certication for empanelment of a bench is not a whimsical exercise, it is provided for under the Constitution. The fact that it is provided in the constitution is a solemn matter which must be taken seriously. Not all matters can qualify for certication as the current petition. This is an ordinary Petition which issues the court deals with on a daily basis on Article 40 and 47 of the Constitution. In an Environment and Land Court, the rst port of call for violations or possible infringement of Article 40 on the right to property is the norm. 85. The court deals with issues relating to survey procedures and summons the Director of Surveys to come and explain certain issues when required. The issue that the Petitioner is complaining of does not qualify as a novel constitutional question, or a substantial question of law that requires the empanelment of a bench. Allowing such an application would be absconding my duty as a judge to hear and determine cases. 86. Where such an application meets the threshold for empanelment, then the court would not hesitate to grant such orders. I therefore nd that the issues above can be determined by a single judge as they do not reach the threshold for empanelment of an uneven number of judges as contemplated by Article 165 (4) of the Constitution of Kenya. I nd that the Application dated 8th September, 2025 lacks merit and is therefore dismissed with costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF DECEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 14

page 14 of 15

M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18653/eng@2025-12-23 15

page 15 of 15