[2018] KEELC 3544 (KLR)
The court found that while the applicants raised serious issues regarding the process of allocation and the need for public participation, it would be untenable to grant orders that would restrain parties already in occupation of the suit land. However, to prevent further actions that could prejudice the pending...
Source-derived case information.
- Citation
- [2018] KEELC 3544 (KLR)
- Parties
- Applicant: The County Government of Kirinyaga; Respondent: The Cabinet Secretary, Ministry of Land, Housing & Urban Development; Respondent: The National Land Commission; Respondent: The Attorney General; Respondent: The County Government of Embu; Respondent: Apolo Njeru Maganjo; Respondent: Joseph Maina Kanyiri; Respondent: James Njagi Cyrus; Respondent: Njirati Kiranga; Respondent: Francis Kariuki Kamau; Respondent: Kuthua Kori; Respondent: Samuel Muriithi; Respondent: John Kiambi Muchiri; Respondent: Jefitha Mwaniki; Respondent: Mbeere Elders Advisory Welfare Group (NGOME); Respondent: Njeru Banda; Respondent: Eston Nyaga Nthiga; Applicant: Seraphino Ngari; Applicant: Joseph Miigwa; Applicant: Nahashon Mugo Kabeu; Applicant: Nathan Mware; Applicant: Josphat Ngirigacha Nungwanja; Applicant: Peterson Maina; Applicant: Mbui Kimeu Ciuri; Applicant: Benard Mwangi; Applicant: Joseph Mukono; Applicant: Ngige Mure; Applicant: Murage Gitura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 3 of 2016
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Temporary Injunction
- Outcome
- Interlocutory injunction partially granted; matter to be heard on priority basis.
- Judges
- FM Njoroge
- Legal Topics
- Community Land Rights, Public Participation, Injunctive Relief, Ancestral Land Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The County Government of Kirinyaga
Applicant
The Cabinet Secretary, Ministry of Land, Housing & Urban Development
Respondent
The National Land Commission
Respondent
The Attorney General
Respondent
The County Government of Embu
Respondent
Apolo Njeru Maganjo
Respondent
Joseph Maina Kanyiri
Respondent
James Njagi Cyrus
Respondent
Njirati Kiranga
Respondent
Francis Kariuki Kamau
Respondent
Kuthua Kori
Respondent
Samuel Muriithi
Respondent
John Kiambi Muchiri
Respondent
Jefitha Mwaniki
Respondent
Mbeere Elders Advisory Welfare Group (NGOME)
Respondent
Njeru Banda
Respondent
Eston Nyaga Nthiga
Respondent
Seraphino Ngari
Applicant
Joseph Miigwa
Applicant
Nahashon Mugo Kabeu
Applicant
Nathan Mware
Applicant
Josphat Ngirigacha Nungwanja
Applicant
Peterson Maina
Applicant
Mbui Kimeu Ciuri
Applicant
Benard Mwangi
Applicant
Joseph Mukono
Applicant
Ngige Mure
Applicant
Murage Gitura
Applicant
Procedural Posture
Constitutional Petition / Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the process of surveying, beaconing, and allocation of land at Mwea Settlement Scheme violated constitutional and statutory requirements.
- 2 Whether the applicants are entitled to temporary injunctive relief to restrain further dealings with the land pending determination of the petition.
- 3 Whether public participation was adequately conducted in the allocation of the suit land.
Ratio Decidendi
The court found that while the applicants raised serious issues regarding the process of allocation and the need for public participation, it would be untenable to grant orders that would restrain parties already in occupation of the suit land. However, to prevent further actions that could prejudice the pending petition, the court granted a temporary injunction restraining the respondents and interested parties from continuing with surveying, beaconing, and allocation of the land at the Mwea Settlement Scheme until further directions. The matter was not certified as urgent but was to be heard on a priority basis, and service of the application was ordered upon all parties.
Court Disposition
Interlocutory injunction partially granted; matter to be heard on priority basis.
Orders
- Matter is not certified urgent but is to be heard on priority basis.
- Temporary injunction granted restraining further surveying, beaconing, and allocation of the land at Mwea Settlement Scheme until 22nd May, 2018.
Full Case Text
Judgment text and source record
66 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
KERUGOYACONSTITUTIONAL PETITION NO. 3 OF 2016
THE COUNTY GOVERNMENT OF KIRINYAGA......................PETITIONER
VERSUS
THE CABINET SECRETARY, MINISTRY OF LAND, HOUSING & URBAN
DEVELOPMENT ……….......................................................1ST RESPONDENT
THE NATIONAL LAND COMMISSION............................2ND RESPONDENT
THE ATTORNEY GENERAL..............................................3RD RESPONDENT
AND
THE COUNTY
GOVERNMENT OF EMBU........1ST INTERESTED PARTY/RESPONDENT
APOLO NJERU MAGANJO
JOSEPH MAINA KANYIRI
JAMES NJAGI CYRUS
NJIRATI KIRANGA 2ND INTERESTED PARTIES/RESPONDENTS
FRANCIS KARIUKI KAMAU
KUTHUA KORI
SAMUEL MURIITHI
JOHN KIAMBI MUCHIRI
JEFITHA MWANIKI
MBEERE ELDERS ADVISORY WELFARE GROUP (NGOME)
NJERU BANDA
ESTON NYAGA NTHIGA 3RD INTERESTED PARTIES/RESPONDENTS
SERAPHINO NGARI
JOSEPH MIIGWA 4TH INTERESTED PARTIES/APPLICANTS
NAHASHON MUGO KABEU
NATHAN MWARE
JOSPHAT NGIRIGACHA NUNGWANJA
PETERSON MAINA
MBUI KIMEU CIURI
BENARD MWANGI
JOSEPH MUKONO
NGIGE MURE
MURAGE GITURA
RULING
1. This application is dated 16. 4.2018 and is brought to court pursuant to Rule 7 of the Constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Procedure Rules 2013). It seeks the following orders:
1. That the honourable court be pleased to certify this matter as urgent and be heard ex-parte in the first instance.
2. That the honourble court be pleased to issue a temporary injunction restraining the Respondents/Interested parties or their agents and or representatives from continuing with the surveying, beaconing and allocation of the land at the Mwea Settlement Scheme pending the hearing and determination of prayers 4 and 5 herein below.
3. That the honourable court be pleased to issue a temporary injunction stopping any occupation and/or entry by the Respondents/Interested Parties or any other persons purporting to be allocated the said land at the Mwea Settlement Scheme pending the hearing and determination of prayers 4 and 5 herein below.
4. That the honourable court be pleased to issue a temporary injunction restraining the Respondents/Interested Parties or their agents and or representatives from continuing with the surveying, beaconing and allocation of the land at the Mwea Settlement Scheme pending the hearing and determination of the petition.
5. That the honourble court be pleased to issue a temporary injunction stopping any occupation and entry by the Respondents/Interested Parties or any other persons purporting to be allocated the said land pending the hearing and determination of the petition.
6. That the costs of this application be in the cause.
2. The application is supported by the affidavit of Nahashon Mugo Kabeu and has the following grounds:
a. That the process of the issuance of the titles has been impugned by the petition herein.
b. That the said land is community land.
c. That to allow persons to occupy the properties is only meant to defeat the petition herein.
d. That there is dire need to maintain the status pertaining when this petition was filed.
e. That the Embu County Government is in the process of granting occupation to several persons as per the list annexed in the petition.
f. That the process of issuance of the said land lacked the required public participation and the same is shrouded in secrecy.
g. That the suit land is ancestral land of the Agikuyu people who have used it for grazing their cattle since time immemorial.
h. That land is a very emotive issue and before any occupation is granted, the petition should be heard and determined.
i. That the petition herein is elaborate on why the application herein should be allowed.
j. That it is mete and just that this application is allowed.
3. At the ex-parte stage, Miss Kiragu told the court that she sought prayers 1, 2 and 3. She told the court that the surveying, beaconing and the issuance of titles had been done secretly and that if the injunctive orders sought are not granted, the obtaining situation will spawn further fighting and the resultant chaos will lead to a breakdown of law and order.
4. I have considered the apposite pleadings and the submissions made by the advocate representing the 4th Interested Parties. I do find issuance of orders in terms of prayer 3 untenable in that it will have the effect of injuncting parties who are denizens and occupants of the suit land.
5. The following orders are issued:-
1. Matter is not certified urgent but is to be heard on Priority Basis.
2. Prayer 2 granted in terms of section 63(e) of the Civil Procedure Act until the 22nd of May, 2018 when the matter will be given directions by the Hon. Justice Angima, ELC Judge, at Embu Law Courts.
3. The application to be served upon all other parties within 10 days of today.
4. Directions on 22nd May, 2018.
Delivered in open court at Chuka this 23rd day of April, 2018 in the presence of:
CA: Ndegwa
Miss Kiragu for the Applicant
P.M. NJOROGE
JUDGE