Murugu & another

2. The petitioners contend that the 50 year delay in completing the transfer of parcel number 594 to the deceased constituted a grave constitutional violation amounting to unjust deprivation of property. They add that there was a discrepancy in terms of acreage and it was resolved that, in addition to the exchange of the two parcels, the Council would pay the deceased money. They have quantied the deceased’s loss at Kshs 23,001,387. They pray for, among other reliefs, a declaration that the estate of the deceased is entitled to full compensation. 3. Together with the petition, the petitioners brought a notice of motion dated 21/4/2026 seeking the following interlocutory orders: (i) a preservation order restraining the respondents and their agents against alienating, leasing, transferring, approving new developments on , issuing fresh plot numbers relating to, or interfering in any manner with the two parcels of land; (ii) a status quo order preserving the current occupation, use and physical condition of the two parcels; and (iii) an order compelling the 1st – 3rd respondents to produce to the court all allocation registers relating to parcel number 5667; all rates and rent records relating to collections made since 1971; all survey maps; all subdivision schemes; and all approval plans relating to Mwanika Market; and all correspondence relating to compensation discussions. The said application is the subject of this ruling. 4. The estate of the deceased alleges that there is danger that the respondents or third parties “have the ability to alter the character, occupation or ownership structure of the disputed parcels.” The estate urges the court to grant the interlocutory preservation order. 5. The respondents did not step forward to respond to the application. 6. I have considered the application. The two questions that fall for determination in the application are: 7. (i) Whether the application meets the criteria for issuing an interim order in the nature of preservation or status quo orders in a constitutional petition; and (ii) Whether a proper case has been made to warrant issuance of an order compelling the 1st – 3rd respondents to produce the itemized evidence at this stage. I will be brief in my analysis and disposal of the two issues. The power to issue an interim order in the nature of a preservation or status quo order in a petition of this nature is granted by rule 23 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. The relevant jurisprudential criteria was outlined by the Supreme Court of Kenya in Gatirau Peter Munya v Kithinji & 22 others [2014] KESC 30 (KLR 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 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 like “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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5504/eng@2026-09-17 2

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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.” 8. In the application under consideration, the applicant contends that the land exchange agreement between the Council and the deceased was entered into in 1971 and the Council took the deceased’s land in the same year. One aspect of their grievance is that the land which the Council gave the deceased was not transferred to the deceased until 2021. The other aspect of their grievance is that there was disparity in terms of the agreed acreage and the Council’s resolution to compensate the deceased with money in addition to the exchange of the land parcels has not been honoured. The gist of the estate’s claim is monetary compensation for the 50 years that they allege the late M’Murungu was deprived of the land and for the discrepancy in terms of the agreed acreage. 9. Indeed, in its petition dated 21/4/2026, the estate of the deceased has quantied in monetary terms the compensation sought, besides praying for general, punitive and exemplary damages for alleged unconstitutional deprivation. Given the above unique circumstances of this petition in which it is clear that what is sought is monetary indemnication, there is no proper basis to warrant issuance of a preservation order targeting parcels that were physically exchanged more than 50 years ago and registrations were subsequently eected. The view the court takes is that if the estate proves its claim, monetary compensation will be an adequate indemnication. 10. Has the estate made a case for an order compelling the respondents to produce certain evidence at this stage? The court has considered the grounds outlined in support of the application. The court has also considered the grounds outlined in the supporting adavit. No attempt was made to justify the plea for an order shifting to the respondents the burden of availing documentary evidence at this stage. No evidence of any notice to produce has ben tendered. The proper procedure is that the petitioner should serve upon the respondents a notice to produce, itemizing the specic documents which are in the custody of the respondents and which the respondents are required to produce. It is only after default by the respondents that the petitioner will be entitled to approach the court for a formal order compelling the respondents to produce the evidence. At this point, the plea is premature. 11. In light of the above ndings, the application dated 21/4/2026 is declined. The applicant will be at liberty to renew the plea for production of documentary evidence once there is compliance with the relevant procedure. Costs of the application shall be in the petition. DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Mr Mutuma for the Petitioner Ms E Wairimu for the 1st Respondent 1st - 4th Respondents – Absent Court Assistant- Mr E Tupet https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5504/eng@2026-09-17 3

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