[2023] KEELC 21881 (KLR)

Chebugel & 3 others v Kenya Rural Roads Authority & 7 others; Rono (Suing as the legal representative of the Estate of Cherono Chebowo (Deceased) & 3 others (Interested Parties) (Environment & Land Petition E004 of 2022) [2023] KEELC 21881 (KLR) (23 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21881 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Petition E004 of 2022

LA Omollo, J

November 23, 2023

Between

Sunguyo Ole Chebugel

1st Petitioner

Chirchir Kipkoech Joel

2nd Petitioner

Valentine Jepkoech Kosgei

3rd Petitioner

Enock Kipyepkwai Chepsom (Suing on their own behalf and on behalf of all the members of the public using the Muserech-Orinie-Kapsatek Road)

4th Petitioner

and

Kenya Rural Roads Authority

1st Respondent

The Chief Land Registrar

2nd Respondent

The Director Of Survey

3rd Respondent

The Hon Attorney General

4th Respondent

Jackson Lagat

5th Respondent

The County Government Of Nakuru

6th Respondent

The County Government Of Baringo

7th Respondent

The National Land Commission

8th Respondent

and

Wilfred Chebon Rono (Suing as the legal representative of the estate of Cherono Chebowo (Deceased)

Interested Party

Samson Kipchumba Kipngok

Interested Party

Kibichii Mogotio

Interested Party

Jeniffer Lagat

Interested Party

Ruling

Introduction. 1. This court delivered a ruling on 23rd March, 2023.

2. The ruling was in respect of an application for temporary mandatory injunction against the 5th Respondent to restrain him from blocking, erecting barbed wire on fencing posts on a portion of the Muserech Orinie – Kapsatek road (which road is said to pass next to his parcel of land) pending the hearing and determination of this petition among other orders.

3. This application was filed by the Petitioners herein.

4. The ruling of 23rd March, 2023 also dealt with the 5th Respondents application dated 1st July, 2022. The said application sought orders compelling the Petitioners to deposit in court an amount of ksh 10,000,000 as security for costs of this suit.

5. In the final result, this court declined to grant the Petitioners orders of temporary injunction but only allowed prayer (g) of the application which was that the 2nd and 3rd Respondents prepare and file a report containing information on ownership and boundaries of parcels of land adjacent to the Muserech-Orinie-Kapsatek road.

6. The application by the 5th Respondents for security for costs was dismissed.

7. Subsequently and pursuant to the order issued by this court the Regional Surveyor Rift Valley Region filed his report dated 2nd October, 2023.

8. The Petitioners Advocate made submissions that on the basis of this report, the Muserech-Orinie-Kapsatek Road should be open stating that the alternative road currently being used by the Petitioners is in a bad state.

9. The 5th Respondent in his submissions on whether he had seen the report (which the court had given him time to look at) stated that they were not involved in the survey and therefore do not agree with its contents. He stated that he was desirous of the court visiting the Locus in quo.

10. Counsel for the 8th Respondent (National Land Commission) in her submissions noted that counsel for the 5th Respondent was questioning an expert report and stated that the only proper way to do so is to get an alternative expert report. She concluded that she supports the re-opening of the road.

11. Counsel for the Petitioners in his conclusion reminded this court that Kenya Rural Roads Authority (1st Respondent), the National Land Commission (8th Respondent) and the Attorney General support the re-opening of the road.

12. The question of re-opening the road is a matter for determination in the Petition as can be seen from prayer (iii).

13. In the ruling of 23rd March, 2023 this court stated at paragraph III that the Petitioners/Applicants had not demonstrated any special circumstances that would warrant the grant of an order of a mandatory injunction at this stage of the proceedings.

14. That position has not changed. Issuing any order for re-opening of the road at this stage wold amount to reviewing my orders which I have not been moved to do and which I shall not do.

15. I order that the matter proceeds to taking directions on the hearing of the Petition.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 23RD DAY, OF NOVEMBER, 2023. L.A. OMOLLOJUDGE.In the presence of:Mr. Oloo for PetitionersMr. Mutai for Andama for 5th Respondent and 1st-4th Interested PartyAttorney General for 2nd, 3rd and 4th Respondent6th Respondent- Absent7th Respondent- Absent8th Respondent- AbsentCourt Assistant: Ms. Monica Wanjohi.