https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4081

Abdirahman & 3 others v Ministry of Lands & 4 others (Environment and Land Petition E003 of 2026) [2026] KEELC 4081 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4081 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Petition E003 of 2026 RO Omondi, J July 2, 2026 IN THE MATTER OF: ARTICLES 10 (2), 22 (1) & (2) (B), 23, 40, 47 and 63 OF THE CONSTITUTION, 2010 IN THE MATTER OF: THE COMMUNITY LAND ACT, THE LAND ACT, THE NATIONAL LAND COMMISSION ACT IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF GAZETTE NOTICE NO. 1903 OF FEBRUARY 2026 RESERVING MURULE COMMUNITY LAND IN MANDERA EAST TO THE MINISTRY OF DEFENCE Between Hussein Weytan Mohamed Abdirahman 1st Petitioner Said Mohamed Issack 2nd Petitioner Abdifatah Mohamed Kahiya 3rd Petitioner Murule Community (Suing Through Its Vice Chairperson Ali Abdullahi Issack) 4th Petitioner and The Ministry Of Lands 1st Respondent The National Land Commission 2nd Respondent The Ministry of Defence 3rd Respondent The County Government Of Mandera 4th Respondent Attorney General 5th Respondent Ruling Introduction 1.Before this court is the Notice of Motion Application dated February 26, 2026, supported by the affidavit of one Hussein Weytan Mohamed Abdirahaman sworn on the same date as well as 15 grounds explicit on the face of the motion. The said application is predicated upon the Petition of even date, challenging the legality and constitutionality of Gazette Notice No. 1903 of February 13, 2026, by which land in Mandera East described as L.R. No. 33285 (hereinafter the suit property) was reserved by the 2nd Respondent for use by the 3rd Respondent for a military camp and training area. 2.The Application seeks the following orders explicit on its face:1.Spent.2.Spent.3.That pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents jointly and severally, their agents, servants or assigns from entering upon, fencing, surveying, titling, alienating, transferring, constructing on, or in any manner whatsoever interfering with the ownership, quiet possession and use of the community land in Mandera East now adjudicated as LR. No. 33285.4.Spent.5.That pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a conservatory order suspending and/or staying the implementation, enforcement and/or any action undertaken pursuant to the reservation of L.R No. 33285 to the Ministry of Defense contained in Gazette Notice No. 1903 of 13th February 2026.6.That the costs of this application be provided for. 3.On February 27, 2026, when the Application came before Kibunja J for directions, he declined to certify the matter as urgent or to grant interim conservatory orders pending the hearing of the Application inter partes. He directed the Petitioner/Applicant to serve the Application upon the Respondents and granted them 14 days after service to file and serve their responses, with corresponding leave to the Applicant to respond to any new facts. The matter was scheduled for mention March 25, 2026, to confirm compliance and for further directions. 4.On March 25, 2026, the Respondents had not filed their responses, and Kibunja J extended time for the Respondents to file appropriate responses to the Petition and further directed that the Application be canvassed through written submissions. The Petitioners were granted conservatory orders restraining the Respondents from interfering with the ownership, quiet possession, and use of the community land L.R. No. 33285 in Mandera East in any manner whatsoever until the mention date of April 29, 2026. The orders were then subsequently extended to June 4, 2026, and have remained in force. 5.The Notice of Motion Application dated February 26, 2026, was opposed through diverse responses: the 2nd Respondent’s Replying Affidavit sworn on March 24, 2026; the 3rd Respondent’s Grounds of Opposition dated April 22, 2026; and the 4th Respondent’s Grounds of Opposition dated March 23, 2026. The 1st and 5th Respondents did not file any responses to the Petition. 6.Additionally, the Petitioner filed submissions dated April 9, 2026, and further submissions dated May 11, 2026. In response, the 2nd Respondent filed submissions dated April 27, 2026; the 3rd Respondent filed submissions dated June 3, 2026; and the 4th Respondent filed submissions dated June 2, 2026, together with a List and a bundle of authorities of even date. Petitioner’s Case** 7.The Petitioners seek conservatory orders to preserve the suit property pending the hearing and determination of the Petition. Relying on the now famous case of Gatirau Peter Munya v Dickson Kithinji & 2 Others [2014] eKLR, the Petitioners submitted that they have satisfied the requisite conditions for the grant of conservatory orders, namely, a prima facie case with a likelihood of success; they would suffer irreparable prejudice if the 3rd Respondent is permitted to occupy the suit property; and finally, that public interest favors the granting of such orders. 8.The Petitioners aver that the suit property constitutes community land traditionally utilized for grazing and livelihood by the Murule community as well as other residents of Mandera East. It is the Petitioners’ case that they only became aware of the reservation on February 24, 2026. They argue that the suit property had, prior to that date, been surveyed, adjudicated, and assigned L.R. No. 33285 without any form of consultation, public participation, consent, or prompt and fair compensation. 9.By undertaking the foregoing actions, the First Respondent unlawfully and without prior consultation, participation, consent, or adherence to due process, converted the aforementioned community land into public land and allocated it under LR No. 33285. Furthermore, the Respondents have published Gazette Notice No. 1903 dated February 13, 2026, reserving the land for use by the Ministry of Defence for the purpose of constructing a military installation known as Karrow Military Camp. 10.The Petitioners submitted that the Acts of the 1st Respondent violate Articles 10, 40, 47, and 63 of the Constitution, section 22 of the Community Land Act, and Regulation 15 of the Community Land Regulation, as neither the community nor the management committee was involved in the process. The Petitioners cited the case of County Government of Meru v District Land Adjudication & Settlement Officer Tigania West & Others [2023] eKLR to support their argument that land traditionally used and occupied by communities cannot be arbitrarily converted or alienated without compliance with constitutional safeguards. 11.The Petitioners further relied on the Court of Appeal case of Attorney General v Zinj Limited [2021] eKLR, for the position that land rights protected by the Constitution cannot be extinguished through administrative action without lawful procedure and due process. 12.In the upshot, the Petitioners invited this court to grant conservatory orders pending the hearing and determination of the Petition, since the said orders will merely preserve the status quo, and a refusal to grant them would risk irreversible harm to the Applicant community and result in the erosion of constitutional safeguards that protect community land. Parties’ Responses** The 2nd Respondent** 13.The 2nd Respondent expressly acknowledges that Gazette Notice No. 1903 was published reserving a parcel now known as L.R. No. 33285, measuring approximately 4,882.3 hectares, situated at Karrow Town, Mandera East Sub-County, for use by the 3rd Respondent as a military camp and training area. 14.It asserts that the reservation was lawful, followed due diligence, and was undertaken pursuant to sections 15, 16, 17 and 18 of the Land Act and section 105(2) of the Land Registration Act. It also states that a joint ground inspection was conducted between September 18th and 23rd, 2023, and that the parcel showed no physical development at that time. 15.The 2nd respondent’s case is that the Petitioners have not established a prima facie case, that any alleged loss is quantifiable and compensable, and that public interest strongly favors the denial of interim relief because the reservation serves a critical national security purpose in a frontier region. 16.It also contends that the land was lawfully reserved in exercise of the Commission’s mandate and that the Petitioners have not demonstrated the necessary standing or proof of title or registration entitling them to challenge the act of the Respondents. The 2nd Respondent asserts that the Application is devoid of merit and invites this court to dismiss it with costs. The 3rd Respondent** 17.On the initial score, the 3rd Defendants argue that the Petitioners have not proven it is a registered community as required by Article 63 of the Constitution. Consequently, they lack the locus to seek constitutional protection because they have not demonstrated the legal existence and registration of the community they represent in bringing this petition. 18.The 3rd Respondent further argues that the impugned Gazette Notice simply initiates or formalizes a statutory reservation process. It does not constitute an allocation, alienation, compulsory acquisition, or immediate dispossession. It claims the petition is premature and speculative, as no physical occupation, fencing, construction, or eviction has been demonstrated. 19.Additionally, the 3rd Respondent asserts that the impugned Gazette Notice includes provisions for further statutory safeguards, such as a management and land-use plan, compliance with planning laws, an environmental and social impact assessment, and the protection of grazing areas and water points. Therefore, the 3rd Respondent characterizes the application as an attempt to halt an incomplete and regulated process and argues that the orders sought are broad and quasi-final. 20.Further, the 3rd Respondent also submits that the Petitioners do not meet the threshold for grant of conservatory orders as outlined in Gatirau Peter Munya v Dickson Kithinji & 2 Others [2014] eKLR. They contend that the Petitioners are improperly seeking substantive relief through interlocutory motions, which they claim are disguised as conservatory orders. This is because the matter concerns “the validity, scope, and legality of Gazette Notice No. 1903," a substantive issue that can only be resolved through a full hearing of the Petition. 21.The 3rd respondent invited the court to decline the grant of conservatory orders sought since the “reservation of the subject land implicates substantial public interest considerations touching on national defence, territorial integrity, public safety, and strategic governmental planning”. The 4th Respondent** 22.The 4th Respondent’s case is that the application is misdirected as against it because, on the face of the Gazette Notice, the reservation order was issued by the 2nd Respondent and the designated management body is the 3rd Respondent, not the 4th Respondent. Consequently, it argues that if the land was indeed unregistered community land, then under Article 63(3) and section 6 of the Community Land Act, the 4th Respondent’s role was custodial and fiduciary, not acquisitive; that no specific act of entry, occupation, fencing or dispossession is attributed to it; and that the orders sought are overbroad and unsupported by evidence of imminent unlawful conduct. 23.Further, the 4th Respondent submits that the Applicants have failed to meet the legal threshold for the grant of interlocutory or conservatory orders because they have failed to establish a prima facie case, have not demonstrated any irreparable harm, and have not discharged the burden of proof required to justify the extraordinary remedy sought. The 4th Respondent also submits that the public interest does not favor the Petitioners. Issues for Determination** 24.Having carefully reviewed the Petition, the Affidavits filed by the Parties in response thereto, and the submissions presently before the court, two main issues, in my humble view, fall for determination, namely:i.Whether the Petitioners have locus standi, andii.Whether this court should grant conservatory orders in the interim, pending the hearing and determination of the Petition dated February 26, 2026. Analysis and Determination i. Whether the Petitioners have Locus Standi 25.This is a threshold question. The Petition is brought under Articles 22(1) and 22(2) of the Constitution, among other constitutional provisions. Article 22(1) entitles “every person” to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or is threatened. The framers of our Constitution, in Article 22(2), further broadened the right of standing and deliberately extended it to persons acting in the interests of groups, classes, associations, and the public interest. 26.Unlike the narrow biblical doorway to heaven, which is difficult and few find, Article 22 is the broad way, and many go in by it. It is the centerpiece of Kenya’s shift from a formally protected but procedurally cramped Bill of Rights to an expressly people-centered, low-formality, public-interest constitutional enforcement system. This thinking is amplified in Article 258 of the Constitution, and Articles 22 and 258 must be read in concert with Articles 20(3) and 259 of the Constitution. 27.The scope of Article 22 is now well settled by several superior court decisions; see Mumo Matemu –v- Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR; and Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others (Petition 3 of 2018) [2021] KESC 34 (KLR), among other decisions. I do not intend to harp on the frayed string. 28.The Respondents’ objection on standing represents the old and archaic constitutional order that is no longer tenable. It, therefore, in my view, fails at this interlocutory stage. On the materials filed, the Petitioners include individual residents and public representatives, and the supporting affidavit expressly depones that the Murule Community is registered and a Certificate of Registration is annexed as “MA-1”. The deponent is authorized to swear on behalf of the co-Petitioners. 29.I would, however, hasten to add that even if the Respondents had not proved registration, the absence of registration alone would not have been fatal at this stage because the individual Petitioners and the public-interest dimension independently anchor standing. ii. Whether this Court should grant Conservatory Orders in the Interim, pending the hearing and Determination of the Petition? 30.The primary constitutional source of power for the grant of conservatory orders is Article 23(3)(c), which expressly authorizes the grant of such orders in proceedings brought under Article 22. As has already been stated, Article 22 is deliberately broad: it covers threatened violations and gives standing to persons acting in the interest of groups, classes, associations, and the public interest. That breadth is important here because the respondents’ arguments on prematurity and standing must be measured against a constitutional text that expressly permits preventive litigation and liberal standing. 31.On the authorities placed before the court by the parties, the most useful working formulation is the Kenyan public-law test for grant of conservatory orders stated in the cases relied on by the parties the applicant must show a prima facie case with a likelihood of success; a real danger of prejudice if the order is withheld; and that the grant of relief is consistent with constitutional values, public interest, and proportionality. The 2nd respondent’s submissions reproduce the well-known statement from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others that conservatory orders bear a “public-law connotation” and should be granted on the inherent merit of a case, taking account of public interest, constitutional values, proportionate magnitudes and priority levels. The Petitioners and respondents alike rely on this line of authority. 32.Article 24 of the Constitution also matters. Where the state or another party seeks to justify a limitation of rights or freedoms, that party must demonstrate that the limitation is reasonable and justifiable in an open and democratic society and must show, among other things, the nature of the right, the importance and extent of the limitation, and whether there are less restrictive means to achieve the purpose. That proportionality architecture is directly relevant when respondents invoke national security and public purpose as reasons for withholding interim restraint. 33.A conservatory order was defined in Invesco Assurance Co. Ltd vs. MW (Minor suing thro’ next friend and mother (HW) [2016] eKLR Nairobi Civil Appeal 151 of 2011, as “a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 34.The principles that inform the grant of conservatory orders already elucidated above, have been explicated in several cases, including Board of Management of Uhuru Secondary School v City County Director of Education& 2 Others and Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR, among others. They are now well settled and are 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 suffer 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; andc.The public interest must be considered before grant of a conservatory order. 35.It is therefore crucial to assess, seriatim, how the application meets or fails to meet the foregoing criteria. 36.A common contention running through the Respondents’ submissions is that the Petitioners have not established a prima facie constitutional case with a likelihood of success. The definition of a prima facie case remains instructive. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others as reproduced in the Respondents’ List and Bundle of Authorities, the Court of Appeal held that a prima facie case is not merely a genuine and arguable case, but one in which the material before the court shows a right apparently infringed so as to call for explanation or rebuttal. That formulation is useful here because the court is not determining final rights but is deciding whether the constitutional complaint is sufficiently weighty and grounded to warrant interim preservation. 37.The consideration of the grant of a conservatory order does not stop at the establishment of a prima facie case; the Petitioners must also clear a further hurdle by demonstrating a likelihood of success. Closely tied to that question is whether there is an arguable and non-speculative challenge to the conversion, reservation, administration, and intended use of the suit land through Gazette Notice No. 1903 of 13th February 2026. See the sentiments of Ibrahim J., as he then was in Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others 38.On the prima facie threshold, the Petitioners have, in my view, crossed it. The live and serious constitutional question is not whether the State may ever regulate or use land in the interest of defence. Article 66 recognizes that the State may regulate land use in the interest of defense and public safety. The real question is anterior: whether the land in question was lawfully available to be treated and reserved as public land at all, and whether the alleged conversion and reservation process complied with Articles 40, 47, 63, 67 and 68, together with sections 15, 16, 17, and 18 of the Land Act, 2012 pleaded by the 2nd Respondent in its Replying Affidavit to the Petition sworn on. March 24, 2026. 39.Community land is constitutionally protected. Unregistered community land is held by the county government in trust for the relevant community. The National Land Commission’s mandate under Article 67 is, by contrast, to manage public land. That makes the character of the land and the legality of any transition from community land to public land a substantial issue fit for trial and sufficiently serious for interim protection. 40.That conclusion is reinforced by the Respondents’ own materials. The 2nd Respondent admits the reservation and the parcellation of the suit property. The 3rd Respondent and 4th Respondent do not deny the existence of the Gazette Notice; rather, they argue about its legal effect, about whether it is only preliminary, and about whether enough subsequent implementation has occurred. Those are classic indicators of a real and triable controversy, not of a frivolous or imaginary one. On the standard set in Mrao Ltd v First American Bank of Kenya Ltd & 2 others, there is clearly a right alleged to have been infringed, and the respondents have found it necessary to offer a detailed explanation and rebuttal. 41.The second limb of a consideration of whether the Petitioners have established a prima facie case with likelihood of success is whether there is a real danger that the Petitioners will suffer prejudice as a result of the violation or threatened violation of the Constitution. The Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR discussed the nature of conservatory orders as follows:“Conservatory orders” bear a more decided public-law connotation: for these are orders to 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 Applicant’s case for orders of stay. 42.Further, in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, the court captured the essence of conservatory orders as follows:Conservatory orders, in my view, are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders, which may only attach to a particular person. 43.The Petitioners have, in my view, shown the requisite prejudice. I do not rest that finding on the private-law notion of irreparable damage alone. Rather, I rest it on constitutional prejudice and on the risk that the petition would be rendered nugatory. If implementation proceeds by physical entry, fencing, exclusion, titling, or construction, the factual and legal character of the suit property may be altered before the court tests the legality of the reservation. The Petitioners’ grievance concerns not simply market value, but loss of access to grazing land, the legality of state action, public participation, community consent, fair administrative action, and constitutional land tenure protections. Such prejudice is not adequately answered by the bare proposition that damages are quantifiable. 44.The Respondents’ answer that no physical dispossession has yet occurred does not defeat conservatory orders that this court may grant. On the contrary, it strengthens the case for granting a conservatory order pending the hearing and determination of the Petition. If, as the Respondents say, the land has not yet been occupied, fenced, or built upon, then preserving the status quo imposes a materially lighter burden than would the undoing of completed construction later. The Respondents themselves also say that future steps remain subject to further plans, statutory compliance, and environmental assessment. Those submissions confirm that implementation can be paused without irreversible administrative disruption while the court determines its legality. 45.Further, on the question of whether, absent interim protection, the substratum of the Petition risks being rendered nugatory, that question, in this record, turns on whether the Gazette Notice of 13th February 2026 and the designation of L.R. No. 33285 constitute a sufficiently concrete threat, notwithstanding the respondents’ insistence that no physical construction or dispossession has yet occurred. 46.The argument that the dispute is premature is also unpersuasive on the current record. This is not a case of a merely contemplated or internal administrative possibility. Gazette Notice No. 1903 has already been published; the suit land has already been described by parcel number; the 2nd respondent acknowledges that the parcel has been reserved for use by the Ministry of Defence; and the Petitioners challenge not only future construction but the legality of the conversion, reservation, and vesting process itself. 47.In constitutional litigation, an applicant need not wait for the bulldozer, the fence, or the eviction notice if the impugned legal instrument has already altered the legal position in a manner that threatens constitutionally protected rights. Article 22 expressly extends to threatened infringements. I therefore find without vacillation that the Petition will be rendered nugatory and an academic exercise should this court decline to preserve its substratum pending the substantive hearing and determination of the Petition. 48.Finally, it is important to address where the public interest and proportionality lie. The Respondents rely on national security, institutional mandate, and alleged prematurity. The Petitioners rely on the rule of law, constitutional fidelity, community land protection, public participation, procedural fairness, and the court’s duty to preserve the subject matter pending trial. 49.Public interest therefore becomes the most delicate part of the balance, but it does not, on this record, favor refusal. National security is indeed weighty, and the court must not treat it lightly. Yet public interest under the Constitution is not exhausted by state convenience or security objectives. It also includes fidelity to constitutional procedures, protection of community land, fair administrative action, public participation, and orderly adjudication before irreversible state action is taken. As the 2nd Respondent’s own submissions recognize, conservatory orders are granted bearing in mind public interest, constitutional values, and proportionality. A carefully calibrated order that pauses implementation of the impugned reservation pending an expedited hearing better reconciles those interests than an order permitting irreversible change before trial. Disposition** 50.In view of the foregoing analysis, the Notice of Motion Application dated February 26, 2026, succeeds to the extent that I find and order as follows:i.The Petitioners have established standing under Article 22 of the Constitution and have raised a live constitutional controversy arising from the publication and intended implementation of Gazette Notice No. 1903 of 13th February 2026in respect of L.R. No. 33285.ii.They have demonstrated a prima facie constitutional case with a likelihood of success in the limited interlocutory sense, namely that there is a substantial and non-speculative question for determination whether the suit land, alleged to be community land, could lawfully be converted, reserved, administered or used in the manner complained of without compliance with the Constitution and the applicable land statutes.iii.They have also shown a real danger of constitutional prejudice and of rendering the substratum of the petition nugatory if implementation proceeds before the legality of the impugned process is tested.iv.The balance of public interest and constitutional proportionality favors preservation of the status quo, pending hearing and determination of the Petition.v.That pending hearing and determination of the Petition, a conservatory order is issued restraining the Respondents jointly and severally, their agents, servants or assigns and/or any persons acting under their authority from entering upon, fencing, constructing on, alienating, titling, transferring, evicting, excluding the Petitioners from, or otherwise materially altering the legal or physical status quo of L.R. No. 33285 pending the hearing and determination of the petition.vi.Pending the hearing and determination of the Petition, a conservatory order is issued suspending and/or staying the implementation and/or enforcement of Gazette Notice No. 1903 of 13th February 2026, reserving L.R No. 33285 to the Ministry of Defense or any action undertaken pursuant to the said Gazette Notice.vii.The petition shall be determined expeditiously and fixed for hearing on a priority basis in view of the public importance of both the land rights asserted and the national security considerations raised by the Respondents.viii.Costs shall be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED AT GARISSA THIS 2ND DAY OF JULY 2026.DR. OMONDI R. OWINO, FCIArbELC JUDGEDelivered Virtually on the Teams PlatformIn the presence of:Mr Odhiambo for the PetitionersMr Kiilu for the 2nd RespondentMr Runya for the 3rd RespondentMr Somo for the 4th RespondentN/a for the 1st & 5th RespondentsMr Dabar Mohamed Court Assistant