Nakiyo (Administrator of the Estate of Kalinyongor - Deceased) v Cabinet Secretary, Ministry of Lands, Housing & Urban Developmen & 3 others; Theophilus (Administrator of the Estate of Paloo Chepkorou Ptototich - Deceased) (Interested Party) (Environment and Land Petition E009 of 2025) [2026] KEELC 1044 (KLR)

ELIUD KAMAMA THEOPHILUS (ADMINISTRATOR OF THE ESTATE OF PALOO CHEPKOROU PTOTOTICH - DECEASED) ......... INTERESTED PARTY RULING 1. The application dated 16/12/2025 seeks conservatory orders restraining the respondents from implementing, enforcing, registering, acting upon, or in any manner giving efiect to the Minister’s Appeal Decision dated 24/5/2022 in Appeal No. 167 of 1995, regarding parcel No. 375-Chepareria Adjudication Section. 2. In the second prayer, the court is asked to restrain the Land Registrar, West Pokot County, from registering any subdivision, transfer, transmission, entry, or dealings on the register for L.R. No. West Pokot Chepareria/375, pursuant to the challenged Minister’s decision. 3. The grounds are set out on the face of the application and in a supporting afidavit sworn by Samson Nakiyo on 10/12/2025. It is deposed that the applicant holds a limited grant of letters of administration for the estate of the late Nakio Kalonyongor, his late father, who had a dispute with the interested party’s father at the demarcation stage. The interested party had lodged an objection with the Land Adjudication Committee and later with the Arbitration Board, leading to decisions dated 15/9/1982 and 30/11/1984, respectively. He annexed copies of the limited grant and the two decisions as annexures marked NK-(01), (02), and (03), respectively. 4. The applicant deposes that the interested party later objected to the Adjudication Register under Section 26 of the Land Adjudication Act, whose decision was delivered on 19/8/1992, confirming the earlier decisions as per annexure marked NK-(4). The applicant deposes that, dissatisfied with the Adjudication Oficer’s decision, an appeal was lodged with the Minister on 169/1992, as per the annexure marked NK-(5). 5. The applicant deposes that pending the Minister’s decision, the late father was registered as owner of the West Pokot Chepareria/375 subject to a restriction, but died on 24/3/2008, before the Minister’s appeal was heard and determined, as according to the death certificate attached as NK-(6), while the interested party’s father passed on, on 15/10/1999. 6. Further, the applicant deposes that after 30 years, the Minister's appeal was heard on 12/7/2022 and a decision was made on 24/5/2022, while there were no letters of administration in respect to the estates of the deceased parties. The applicant faults the hearing, proceedings, and the decision was made in vain, was done by parties and by a tribunal lacking jurisdiction, hence the parties were not accorded a fair hearing. 7. The applicant deposes that the efiect of the Minister’s decision was to overturn all the prior decisions awarding the suit land to the applicant, and only retaining 5 acres as per annexure marked NK-7(A) and (B). 8. The applicant deposes that the redistribution of the suit land was made without valuation, reasons, or legal basis, without considering the previous evidence by the Land Adjudication Oficer, but instead received fresh evidence from difierent witnesses without giving reasons for diverting from the previous decision. 9. The applicant deposes that by a letter dated 26/3/2025, the County Surveyor was directed to implement the decision as per annexure marked NK-(8) proceeded to issue a notice dated 11/2/2025 to the parties to visit the land as per annexure marked NK-(9). The applicant deposes that he became https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1044/eng@2026-02-25 2

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aware of the decision when he obtained the County Surveyor’s letter dated 1/10/2025, hence leading to the filing of this petition. 10. The applicant deposes that the decision purports to divert the estate ofi the suit land, expose it to loss of possession, occupation, and use, contrary to Articles 40, 47, and 50 of the Constitution, with an imminent threat of eviction, subdivision, and re-demarcation, efiectively altering the physical boundaries, causing displacement, disruption of possession and rendering the petition nugatory. 11. The application was supported by oral submissions by Mr. Magal, advocate, emphasizing the contents of the application that it was in the public interest to issue conservatory orders. 12. Learned counsel for the respondents, Miss. Chilaka submitted that they were opposed to the application, but left it to the court, since no replying afidavit had been filed. Learned counsel, Miss. Chebet, for the interested party, relied on grounds of opposition dated 28/1/2026, that the court lacks jurisdiction to entertain the application and the petition, since no judicial review application was filed on time to quash the impugned decisions. 13. Learned counsel submitted that the applicant had failed to exhaust the alternative available mechanisms. Further, learned counsel submitted that the parties' representatives were in attendance at the Minister's appeal proceedings, and they did not raise the issue of capacity then, and have also been on the suit land all this time. 14. In a rejoinder, Mr. Magal, advocate, submitted that the two parcels are Nos. 374 and 375, and the efiect of the implementation is that the whole 17 acres of the land will go to the interested party, while his client will only retain 5 acres, hence there will be irreparable loss or damage, unless the orders are issued. Learned counsel submitted that the petition will be rendered nugatory. 15. Learned counsel submitted that the jurisdiction of the court was properly invoked, given that judicial review is now subsumed under the new Constitution. 16. The jurisdiction to issue conservatory orders is discretionary. Such orders are not granted as a matter of course. They are exceptional reliefs intended to preserve the substratum of a constitutional dispute, without determining it in advance. The parameters to consider were set out in Gatirau Peter Munya vs- Dickson Mwenda Kithinji & Others [2014] eKLR. An applicant must establish a prima facie case, demonstrate real danger of prejudice if the order is not granted, and the court must weigh and balance the public interest. The three considerations must be established conjunctively. Absence of one is fatal. 17. A conservatory order is a judicial remedy sought or issued by a court to preserve a subject matter until a petition is heard. It seeks to restore the status quo ante, to ensure the petition is not rendered nugatory. At an interim stage, the court does not delve into the merits of the case, but looks at the overview of the substance to establish if a prima facie case has been established, to warrant the orders sought. See Mrao Ltd -vs- First American Bank (K) Ltd [2003] eKLR. 18. Conservatory orders bear a public law connotation. They are granted on the inherent merits of a case. The court looks at the public interest, constitutional values, principles, proportionate magnitudes, and the priority levels attributed to the relevant causes. 19. In Muslims for Human Rights (MUHURI) & 2 others -vs- Attorney General & 2 others [2011] KEHC 4291 (KLR), the court warned that it must not make final findings or conclusive determination. 20. In this application, the jurisdiction of the court is attacked by the interested party, since there was a non-exhaustion of the judicial review process to invalidate the Minister’s appeal. In Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) -vs- Kazungu & 2 others [2023] KECA 1280 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1044/eng@2026-02-25 3

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(KLR), the issue was the jurisdiction of the Environment and Land Court to entertain a challenge of a Minister’s decision made pursuant to Section 29 of Cap 284. 21. The court held that the only option for the appellant was to pursue judicial review and could therefore not reopen the case and challenge it except through judicial review. The court cited Julia Kaburia vs- Manene Kabeere & 6 Others [2007] KECA 61 (KLR) and Tobias Achola Osindi & 13 others -vsCyprianus Otieno Ogalo & 6 others [2013] KEHC 2165 (KLR), that the court’s jurisdiction is ousted by Cap 284. 22. In this application, the applicant seeks, through the petition, to challenge the Minister’s decision made on 24/5/2022, three years after it was made outside the alternative process provided under the Land Adjudication Act, Cap 284. The applicant has not sought leave to challenge the decision out of time or explained the delay in lodging the petition, other than a judicial review application. 23. In the Minister’s appeal, the applicant was a participant at the hearing and cannot turn around and deny knowledge of the dates for the hearing and the outcome of the decision, as well as his capacity at the time. 24. In Musila -vs- Thengi & 2 others [2025] KECA 750 (KLR), the court observed that Article 50 of the Constitution addresses the right to have a dispute fairly resolved. The law is not that a party must be heard in every litigation, so long as a reasonable opportunity is given, and where it is not utilized, then the only point on which a party not utilizing it can be heard is why he did not utilize it. 25. The applicant was given an opportunity to appeal against the Minister’s decision, but failed to exhaust the available opportunity on time or at all within 6 months of the decision. Invoking the jurisdiction of this court through a petition instead of judicial review to undo the decision 3 years down the line is an abuse of the court. The court agrees with the interested party that it lacks jurisdiction not only to grant conservatory orders, but also to entertain this petition. 26. The upshot is that the petition and the application dated 16/12/2025 are hereby struck out and or dismissed respectively, for lack of jurisdiction and merits. 27. Costs to the interested party. File closed. 28. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 25TH DAY OF FEBRUARY 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Magal for petitioner present Sugut for Chebet for the interested party present No appearance for the respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1044/eng@2026-02-25 4

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