John Muthama Wasusana & 3 Others v Association of Sisterhood of Kenya – Registered Trustee & 2 Others

of the Estate of GRACE WAMBUI KIHARA………………..4 th PETITIONER AND ASSOCIATION OF SISTERHOOD OF KENYA – REGISTERED TRUSTEE…………………………….……….1ST RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT – AUTHORITY……………………………………………….2ND RESPONDENT KAJIADO COUNTY GOVERNMENT……………………3RD RESPONDENT RULING (In respect of the application by the Petitioners/Applicants for an order of interim injunction restraining and or stopping ongoing construction works on the suit property). Introduction. 1. I need to state from the onset that I will be deliberately frugal with my words in this ruling in order not to appear to be going into the merits of any of the three pending applications in this matter and ultimately the Petition before parties have had an opportunity to prosecute them. 2. What is before the court is a Constitutional Petition by the Petitioners brought pursuant to the provisions of Articles 22 and 23 of the Constitution alleging violation of various fundamental ________________________________________________________________ RULING CONST. PET. NO. E005/26 2

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rights allegedly occasioned by the 1 st respondent’s ongoing development, which, according to the Petitioners, was approved without due process and in violation of their rights, including property rights and the Article 42 right to a clean and healthy environment and the right to fair administrative action under Article 47 of the Constitution. 3. The Petitioners filed an application; the notice of motion dated 14th August 2026 under certificate of urgency alongside the petition seeking restraining orders pending the hearing and determination of the petition. On 21st August 2026, the court certified the application as urgent but declined to issue interim orders until the respondents had had the opportunity to respond to it. 4. On 22nd September 2026, when the Petitioners motion was scheduled for hearing inter parties, it emerged that the 1 st respondent had filed a replying affidavit on 18 th September 2026. The petitioners through their advocates informed the court that they had not been formally served with the application but had only seen it on the Case Tracking System. 5. In issuing directions on 21st August 2026, the court was minded to issued specific time bound directions to facilitate the expeditious disposal of the Petitioners’ application. The court ________________________________________________________________ RULING CONST. PET. NO. E005/26 3

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directed service of the application forthwith for inter partes hearing on 22nd September 2026. The court went further and directed the respondents to serve their responses to the application in 10 days after service, with corresponding leave to the applicants to file a further affidavit, if need be, within 7 days upon service of the responses by the respondents. The parties had the liberty to file and exchange brief submissions at least 3 days before the date of the inter parties hearing. 6. The petitioners have filed an affidavit of service confirming service upon the respondent on 25 th September 2026. In line with the court’s directions, the 1 st respondent should have filed their response within 10 days of service. They did not comply, thereby rendering the inter partes hearing scheduled for 22 nd September 2022 impossible. That is what prompted the petitioners to plead with the court for interim orders awaiting the hearing and determination of their application. 7. This court, in handling a constitutional petition, is empowered under rule 23 (1) of the Constitution of Kenya (Protection of Rights Procedure and Fundamental Rules, 2013), to Freedom Practice and hear determine an and application for conservatory or interim orders. Of course, the ________________________________________________________________ RULING CONST. PET. NO. E005/26 4

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court also retains its inherent jurisdiction to make any orders for the ends of justice. 8. Interim orders do not decide the rights of parties; they are made for the purposes of keeping things in status quo till the rights of parties can be decided or in this instance, pending the inter partes hearing of the applications. 9. In this case, and from the replying affidavit of the 1 st respondent, construction is indeed going on. 10. The 1st respondent has raised the issue of the misdescription of the suit property which the petitioners have described as NGONG/NGONG/11054 instead of NGONG/NGONG/110541. The petitioners owned up to the error and have since filed an application seeking to correct the error which they termed as inadvertent. 11. The court, having carefully considered the pleadings filed in this case by the 1st respondent, considers it appropriate and in the interest of justice to issue interim orders to stop any further construction being undertaken by the 1 st respondent on the subject property, NGONG/NGONG/11054 the alias plot of land known as NGONG/NGONG/110541 (whichever description) pending the hearing and disposal of the applications filed in this case. So far, the petitioners have two ________________________________________________________________ RULING CONST. PET. NO. E005/26 5

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applications, whereas the 1st respondent has one application. The court will issue directions to facilitate the expedited hearing and disposal of the applications. It is so ordered. Dated Signed and Delivered Virtually this 24th Day of September 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Ochieng alongside Mr. Shadrack Wambui and Mr. Jeff Kangethe for the Petitioners Mr. Waita h/b for Mr. Wabuge for the 1st Respondent N/A by the 2nd and 3rd Respondents Court Assistant: Alex M.D. MWANGI JUDGE ________________________________________________________________ RULING CONST. PET. NO. E005/26 6

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