Dewridge Management Public Limited Company & 8 others v Psok Holdings Limited & 2 others

KENYA COMMERCIAL BANK LIMITED ................................ 2ND RESPONDENT NATIONAL LAND COMMISSION ............................................ 3RD RESPONDENT RULING 1. What is before me for determination is the Petitioners’ application brought by way of a Notice of Motion dated 8th May 2023 pursuant to Articles 22, 23and 162(2) of the Constitution of Kenya, Rules 2,3,4, 13,1921 and 23 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013) seeking Orders: a. Spent b. Spent c. That pending the hearing and determination of the substantive petition herein , there be a conservatory order restraining the Respondents by themselves, their agents, employees or persons acting howsoever on their behalf from selling by way of public auction scheduled for the 9th of May 2023 or howsoever, the public utility plots within Dewridge Estate Ruiru, Kiambu being L.R No. 28800/25 and L.R 28800/35 which are set aside for a recreational park , L.R No. 28800/34 which is set aside for a club house, L.R No. 28800/37which is set aside for the construction of a health centre, L.R No. 28800/38 which is set aside for the construction of a nursery school and L.R No. 28800/11 ( plot C14) which is set aside for a borehole. d. That the costs of this application be provided for. 2. The application is premised on the grounds set out on the face of the Notice of Motion and the supporting adavit of Dr. Paul Karanja Mbugua, the director of the 1st Petitioner and the 2nd Petitioner herein, on his own behalf and on behalf of all the Petitioners. 3. He deposes that he and the other Petitioners purchased various parcels of land from the 1st Respondent pursuant to sale agreements executed between the parties. That Dewridge estate (hereinafter, “the estate”) is comprised of over 200 plots which are divided into various courts and zones according to the master plan developed for the estate by the developer and landowners who intend to construct permanent residential homes under the applicable planning and zoning regulations. 4. It is his further deposition that the landowners formed the 1st Petitioner company as the management company mandated to mobilize resources and undertake the development and maintenance of the estate and prole it as an upmarket residential estate zoned for controlled development of a single residential dwelling unit on a minimum of 0.2 Ha of land. The management company was also expected to ensure the conservation of the environment and protection of the public utility plots that are necessary for ensuring access to a clean and healthy environment. 5. The original parcel of land known as L.R No. 28800/4 Ruiru was divided into 200 plots measuring half an acre each consisting of residential plots, commercial plots and public utility plots as set out in the master plan and approved sub-division plan. 6. He deposed that as part of the express or implied conditions for the approval of the sub-division plan, it was required to provide and apportion part of the land from the initial parcel no.28800/4 by way of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18655/eng@2025-06-18 2

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surrender for public utilities including roads and other public utilities such as schools, playgrounds, recreational areas and other community initiatives which would be used by the occupants of the residential plots. 7. Sometime in 2013, the 1st Respondent presented a subdivision plan for approval by the 2nd Interested Party, the National Land Commission and the Kiambu District Planning Oce together with the District Lands Oce. 8. The Petitioners/ Applicants assert that Plan was subsequently approved by the County Government of Kiambu on 4th June 2013 and further by the National Land Commission vide a letter dated 26th March 2014 subject to the following conditions: i. Surrender of all land earmarked for road reserves to the government free of cost; ii. Apportionment of rent for the sub-plots by the government valuer; iii. Surrender of the head title to the government in exchange for individual titles for the sub plots; iv. Provision of safe drinking water to each sub-plot; v. No new access roads being made to the classied road network without the approval of the Kenya Urban Roads Authority; vi. Submission of letter of consent from the area Land Control Board; vii. Submission of copies of letter of commendation from all the relevant authorities; and viii. Adherence to all other legal and administrative requirements 9. It is the Applicants’ position that all landowners and residents of Dewridge Estate purchased their respective plots from the 1st Respondent on the strength of a duly approved subdivision plan. These purchasers did so with the legitimate and reasonable expectation that the estate would be developed in strict conformity with that plan, as sanctioned by the County Government of Kiambu and the National Land Commission. 10. The Applicants further contend that once the subdivision plan was approved and subsequently registered over the 1st Respondent’s original title, being L.R. No. 28800/ 4, all parcels designated as public utility plots and social amenities were thereby surrendered for public use. By operation of law, or at the very least by necessary implication, these parcels ceased to be private property. Instead, they acquired the character of public land, the titles of which are now held in trust for the benet of the residents of Dewridge Estate and the general public by the National Land Commission. 11. It is the Applicants’ position that upon the surrender of the said public utility plots by the 1st Respondent to the Government of Kenya, those parcels irrevocably assumed the status of public land. From that moment, they were no longer subject to allocation, alienation, or appropriation for private purposes; whether by the 1st Respondent or by any other individual or entity. The surrender rendered them unavailable for any form of private claim, for they stood dedicated to the public domain, held in trust for the common benet of the estate’s residents and the broader public. 12. The Applicants assert that they are aware that the 1st Respondent took out credit facilities from the 2nd Respondent to facilitate the acquisition of the land, now Dewridge Estate. The Applicants clarify https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18655/eng@2025-06-18 3

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that they were not privy to the agreement between the 1st Respondent and 2nd Respondent in respect to the credit facility. 13. It is the Applicants’ position that the credit facilities advanced to the 1st Respondent were secured by a charge registered over the original title, L.R. No. 28800/ 4. In due course, this property was subdivided in accordance with the approved subdivision plan. Upon the sale and transfer of the resulting individual plots to the various Applicants and other purchasers, the respective portions were duly discharged from the encumbrance. Consequently, each purchaser acquired their parcel free from the original charge, having met the consideration required for transfer and discharge. 14. The Applicants assert that they became aware, through representations made by the 2nd Respondent, that the 1st Respondent had defaulted on its loan repayment obligations. As a result of this default, the 2nd Respondent now seeks to recover the outstanding loan balance by exercising its statutory power of sale. To this end, the bank proposes to dispose of, by way of public auction, all plots and parcels of land within Dewridge Estate, including parcels designated for public utility purposes. 15. The Applicants contend that the Respondents actions constitute a violation of their constitutional proprietary rights and they are apprehensive of losing all the public land within the estate set aside and surrendered for common use contrary to the Physical Planning Act 2019. 16. The Applicants arm that they do not object to the 2nd Respondent exercising its statutory power of sale over the private plots that remain under the ownership of the 1st Respondent, insofar as such sale is necessary to recover any outstanding legal charge amounts. However, they seek conservatory orders to safeguard the parcels that were expressly set aside for public use namely L.R No. 28800/ 25, 28800/ 35, 28800/ 34, 28800/ 37, 28800/ 38 (the suit properties) The suit properties, the Applicants contend, ought not to be subjected to the statutory power of sale which the 2nd Respondent now seeks to invoke, as they are no longer available for private disposition and fall outside the scope of enforceable security. 17. The Application was vehemently opposed by the 2nd Respondent vide adavit of one Faith Wambui sworn on 4th December 2024. 18. The parties were directed to canvass the application by way of written submissions. 19. Having perused the application, the replying adavit in opposition, and the parties’ written submissions and the authorities relied on by both parties, the singular issue for determination is whether the Applicants should be granted the conservatory orders. Analysis and Determination 20. Before I embark upon the determination of whether the circumstances of the present matter merit the grant of a conservatory order, it is necessary to situate the analysis within the proper constitutional and jurisprudential framework. The Supreme Court of Kenya, in its authoritative pronouncement in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, drew a sharp distinction between the traditional civil law injunction and the conservatory order rooted in public law. 21. While injunctions are often guided by the ebb and ow of private convenience, weighted by the balance of probabilities and fears of irreparable harm, conservatory orders rise above such considerations. They are not instruments of private reprieve but guardians of the constitutional order. They exist to protect the integrity of public institutions, to ensure the orderly exercise of authority, and to uphold the Court’s adjudicatory mandate in the public interest. The grant of such an order, therefore, is not to be treated lightly nor mechanically, but must be anchored in the inherent merit of the cause, the public https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18655/eng@2025-06-18 4

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interest it implicates, and the constitutional values it seeks to preserve. It is against this backdrop that the Applicants’ plea must be examined. 22. Both the Applicants and the 2nd Respondent have relied on authorities that highlighted the applicable principles for the grant of conservatory orders. See: Nubian Rights Forum & 2 others vs. Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae) Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR 23. This Court derives its authority to issue conservatory orders in constitutional petitions from Article 23(3)(c) of the Constitution of Kenya. 24. The guiding principles applicable to the grant of conservatory orders were lucidly articulated by Onguto J. in Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others [2015] eKLR. In that decision, the learned judge distilled a framework that reects not only the structure of constitutional adjudication but also the moral imperative to preserve the rule of law during the pendency of a petition. First, an applicant must establish a prima facie case, one that is not frivolous but instead raises serious questions worthy of judicial consideration, with a likelihood of success upon full hearing. Second, the applicant must demonstrate that, absent the conservatory orders, he is likely to suer prejudice that cannot be remedied through ordinary relief at a later stage. 25. Thirdly, the Court should consider whether the grant or denial of conservatory relief would promote the constitutional values and the objectives underlying a specic right or freedom enshrined in the Bill of Rights. The Court must also assess whether the refusal to grant interim protection would render the petition, or its essential substratum, nugatory, thereby defeating the very purpose of constitutional petition. Finally, the Court must weigh the broader public interest and all relevant factual considerations. 26. The discretion to grant conservatory orders is not exercised in a vacuum but is instead informed by a careful balancing of competing interests, the demands of justice, and the need to safeguard the constitutional architecture. These principles, taken together, form the cornerstone of the Court’s jurisdiction to intervene preventively in the face of threatened constitutional harm. 27. It is the Applicants’ submission that they have interest in the suit properties which were set aside for public utilities including roads, a recreational park, a club house, a health center, a nursery school and a community borehole for their common use. 28. Learned counsel for the Applicants submits that the conditions for the grant of conservatory orders, as articulated by the Supreme Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (supra), have been fully satised. It is contended that the Applicants have established a prima facie case raising serious constitutional issues concerning the protection of public land and the rights of purchasers. Counsel further argues that the public interest favours the preservation of the public utility plots, which were set aside for communal benet and should not be lost through private enforcement mechanisms. Lastly, it is submitted that unless conservatory orders are granted, the petition will be rendered nugatory, as the subject parcels may be irreversibly disposed of through public auction before the matter is heard and determined. 29. Learned counsel for the 2nd Respondent, vigorously opposed the Applicants’ claim, submitting that the application is devoid of merit, misconceived in law, and undeserving of the equitable reliefs sought. They submit that the Applicants have failed to demonstrate the specic public interest alleged to be under threat and have instead invoked broad constitutional language without tethering it to concrete prejudice or imminent harm. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18655/eng@2025-06-18 5

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30. It is the 2nd Respondent’s position that the suit properties form part of common amenities within Dewridge Estate, intended for use by residents as private beneciaries, rather than public land held in trust for the general public. Further, it is argued that there is no credible or admissible evidence before the Court to support the Applicants’ assertion that the suit properties were ever surrendered to the government so as to acquire the legal character of public land within the meaning of the Constitution. 31. The 2nd Respondent contends that they will be greatly prejudiced if restrained from exercising their statutory power of sale to recover the outstanding sum of Ksh. 294, 051, 348.07 owed to them by the 1st Respondent. 32. I nd myself in respectful concurrence with learned counsel for the 2nd Respondent. In the present case, the Applicants have not placed before this Court sucient material to establish a prima facie case that is not merely arguable but grounded in demonstrable rights deserving of protection at this interlocutory stage. Nor have they shown what particular prejudice, beyond general inconvenience, would be suered if the orders are withheld. 33. Additionally, the Applicants have conspicuously failed to demonstrate any tangible public interest connected to the suit properties that would justify the extraordinary intervention of this Court by way of conservatory orders. It is particularly noteworthy that the suit properties were not designated as part of parcels set aside as ‘road reserves’, which was a specic and express condition for the subdivision and approval of the original title. In the absence of a clear demonstration that the subject parcels are held for or serve a broader public purpose, the invocation of constitutional protections must fail. 34. As the Supreme Court observed in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (supra), conservatory orders are not to be granted lightly nor as a matter of course; they must be anchored in the public interest and the preservation of constitutional values. Without such foundation, to grant the relief sought would amount to an unwarranted interference with the lawful exercise of statutory rights. 35. Accordingly, the balance, both legal and equitable, does not tip in the Applicants’ favour. The application for conservatory orders fails and the application dated 8th May 2023 is accordingly dismissed. The costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY, AT THIKA THIS 18TH DAY OF JUNE 2025. …………………….. J. M. ONYANGO JUDGE In the presence of: Mr Njenga for the Petitioners Miss Ogonyo for Mr Wetangula for the Respondents Court Assistant: Hinga THIKA ELC PET 006 OF 2023 (RULING) Page 4 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18655/eng@2025-06-18 6

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