[2019] KEELC 1267 (KLR)
The court found that the matter was at an early stage and the application for a temporary injunction had not yet been determined. The judge considered that if the respondents were allowed to proceed with gazetting the municipality boundaries, the substratum of the suit could be irreparably affected, rendering the...
Source-derived case information.
- Citation
- [2019] KEELC 1267 (KLR)
- Parties
- Applicant: Alexander Barille Abdubah; Applicant: Girro Katelo Yattan; Applicant: Elema Galgalo Jillo; Applicant: Abdub Kofo Mamo; Applicant: Guy Butto Adano; Applicant: Tura Godana Mamo; Applicant: Kuni Elle; Applicant: Abdi Hassan; Applicant: Bonaya Katelo; Applicant: Haji Abdo; Applicant: Eden Abdo; Applicant: Mahd Dalache; Applicant: Leria Dokhle; Applicant: John E’Tala; Applicant: Zeinabu Fech; Applicant: James Lekargi; Applicant: Kalali Zakaria; Applicant: Lekuti Gobanai; Respondent: The Governor, Marsabit County Government; Respondent: Marsabit County Government; Respondent: The County Assembly of Marsabit
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 22 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Temporary Injunction
- Outcome
- interlocutory injunction granted; matter to be heard expeditiously
- Legal Topics
- Community Land Rights, Municipality Boundaries, Temporary Injunctions, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Barille Abdubah
Applicant
Girro Katelo Yattan
Applicant
Elema Galgalo Jillo
Applicant
Abdub Kofo Mamo
Applicant
Guy Butto Adano
Applicant
Tura Godana Mamo
Applicant
Kuni Elle
Applicant
Abdi Hassan
Applicant
Bonaya Katelo
Applicant
Haji Abdo
Applicant
Eden Abdo
Applicant
Mahd Dalache
Applicant
Leria Dokhle
Applicant
John E’Tala
Applicant
Zeinabu Fech
Applicant
James Lekargi
Applicant
Kalali Zakaria
Applicant
Lekuti Gobanai
Applicant
The Governor, Marsabit County Government
Respondent
Marsabit County Government
Respondent
The County Assembly of Marsabit
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the petitioners are entitled to a temporary injunction restraining the respondents from publishing or gazetting the inclusion of certain wards as part of Marsabit Municipality pending determination of the application.
- 2 Whether failure to grant the temporary injunction would render the application nugatory and affect the substratum of the suit.
Ratio Decidendi
The court found that the matter was at an early stage and the application for a temporary injunction had not yet been determined. The judge considered that if the respondents were allowed to proceed with gazetting the municipality boundaries, the substratum of the suit could be irreparably affected, rendering the application and the main petition nugatory. The court therefore determined that it was necessary to grant an order to maintain the status quo pending the hearing and determination of the application, to preserve the subject matter of the dispute and ensure that the applicants' rights were not prejudiced before the court could fully adjudicate the issues.
Court Disposition
interlocutory injunction granted; matter to be heard expeditiously
Orders
- Prayer 2 in the application dated 10.9.2019 is allowed: a temporary injunction is issued restraining the respondents from publishing or gazetting the inclusion of Karatina Karare Ward and Shegel and Oranderi as part of Marsabit Municipality pending hearing and determination of the application.
- The matter is to be heard expeditiously.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PETITION NO. 22 OF 2019
IN THE MATTER OF ARTICLE 22 AND ARTICLE 258 (1) & (2) (C) OF THE CONSTITUTION OF KENYA 2010
IN THE MATTER OF ALLEGED THREAT OF VIOLATION OF ARTICLE 2, 3 AND 10 OF THE CONSTITUTION OF KENYA 2010
IN THE MATTER OF ALLEGED THREAT TO AND CONTRAVENTION OF ARTICLES 19, 20, 21, 22, 23, 24, 25 ©, 28, 35, 40, 43, 47, 50, 51, 63 OF THE CONSTITUION OF KENYA 2010
IN THE MATTER OF THE COMMUNITY LAND ACT 2016
IN THE MATTER OF THE URBAN AREAS AND CITIES (AMENDMENT ACT NO. 30 OF 2019)
IN THE MATTER OF THE URBAN AREAS AND CITIES ACT 2011
BETWEEN
ALEXANDER BARILLE ABDUBAH ..................................1ST PETITIONER
GIRRO KATELO YATTAN ...................................................2ND PETITIONER
ELEMA GALGALO JILLO ..................................................3RD PETITIONER
ABDUB KOFO MAMO ..........................................................4TH PETITIONER
GUYO BUTTO ADANO .........................................................5TH PETITIONER
TURA GODANA MAMO .......................................................6TH PETITIONER
KUNI ELLE .............................................................................7TH PETITIONER
ABDI HASSAN ........................................................................8TH PETITIONER
BONAYA KATELO..................................................................9TH PETITIONER
HAJI ABDO............................................................................10TH PETITIONER
EDEN ABDO...........................................................................11TH PETITIONER
MAHD DALACHE.................................................................12TH PETITIONER
LERIA DOKHLE...................................................................13TH PETITIONER
JOHN E’TALA.......................................................................14TH PETITIONER
ZEINABU FECH....................................................................15TH PETITIONER
JAMES LEKARGI................................................................ 16TH PETITIONER
KALALI ZAKARIA...............................................................17TH PETITIONER
LEKUTI GOBANAI...............................................................18TH PETITIONER
VERSUS
THE GOVERNOR, MARSABIT COUNTY
GOVERNMENT ....................................................................1ST RESPONDENT
MARSABIT COUNTY GOVERNMENT............................2ND RESPONDENT
THE COUNTY ASSEMBLY OF MARSABIT ...................3RD RESPONDENT
RULING
1. The application before me is dated 10. 9.2019. It is yet to be prosecuted. The applicant however prays that pending the hearing and determination of the said application, the court be pleased to issue the following orders:
(i) That the honourable court be pleased to issue a temporary injunction restraining the respondents their employees, servants, agent’s representative and/or any other persons acting under their instructions from publishing and/or gazetting in Kenya Gazette or in any other forum a decision to include Karatina Karare Ward and Shegel and Oranderi as part of the Marsabit Municipality pending the hearing and determination of the application herewith.
2. It is averred that if the temporary orders are not granted, the respondents will proceed to gazette the municipality boundaries yet these are the issues in contention. The application will then amount to nothing.
3. The prayer for temporary injunction has been opposed where it is averred that the parties are not going to be prejudiced in anyway and that no irreparable harm will be suffered.
4. I have weighed all the issues raised herein. The matter is at the infancy stage and the application is yet to be determined. I find that the substratum of the suit may be affected if an order to maintain status quo is not granted.
5. In the circumstances, I allow prayer 2 in the application of 10. 9.2019 but I direct that the matter be heard expeditiously.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 2ND DAY OF OCTOBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
B. Kinyua holding brief for Bayale for the 1st and 2nd respondent
Mutegi holding brief for Lesaisor for petitioner
HON. LUCY. N. MBUGUA
ELC JUDGE