[2020] KEELC 1711 (KLR)
The court declined to grant interim conservatory orders because the matter was at an early stage, with respondents yet to file their responses. The judge held that it would be premature to issue such orders without being fully apprised of all relevant facts. The court emphasized that conservatory orders are...
Source-derived case information.
- Citation
- [2020] KEELC 1711 (KLR)
- Parties
- Applicant: Leruk Murusi; Applicant: Lecheku Angele; Applicant: Lrado Stephen Lterios; Applicant: Ltetian Lerupes; Applicant: Steve Timbor; Applicant: Lendododo Lolbalanga; Applicant: Jimmy Leneepe; Applicant: Stephen Lesoroh Gambare; Applicant: James Marleni; Applicant: Lpirikoni Neepe; Applicant: Patrick Kuraki; Applicant: Samuel Loibarban; Applicant: Francis Leaduma; Respondent: The County Government of Marsabit; Respondent: The Chief of the Kenya Defence Forces; Respondent: The Cabinet Secretary Ministry of Defence; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 4 of 2020
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Conservatory Orders
- Outcome
- Application for interim conservatory orders declined.
- Legal Topics
- Community Land Acquisition, Public Participation Requirements, Conservatory Orders, Constitutional Rights Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leruk Murusi
Applicant
Lecheku Angele
Applicant
Lrado Stephen Lterios
Applicant
Ltetian Lerupes
Applicant
Steve Timbor
Applicant
Lendododo Lolbalanga
Applicant
Jimmy Leneepe
Applicant
Stephen Lesoroh Gambare
Applicant
James Marleni
Applicant
Lpirikoni Neepe
Applicant
Patrick Kuraki
Applicant
Samuel Loibarban
Applicant
Francis Leaduma
Applicant
The County Government of Marsabit
Respondent
The Chief of the Kenya Defence Forces
Respondent
The Cabinet Secretary Ministry of Defence
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the petitioners have established a prima facie case for the grant of interim conservatory orders.
- 2 Whether the process of land acquisition complied with constitutional and statutory requirements, particularly public participation.
- 3 Whether the court should issue conservatory orders before full responses are filed by the respondents.
Ratio Decidendi
The court declined to grant interim conservatory orders because the matter was at an early stage, with respondents yet to file their responses. The judge held that it would be premature to issue such orders without being fully apprised of all relevant facts. The court emphasized that conservatory orders are discretionary and should only be granted where the applicant demonstrates a prima facie case and where the public interest and constitutional values warrant such intervention. In this instance, the court found that the threshold for granting conservatory orders had not been met, and that the interests of justice required the court to await full submissions from all parties before...
Court Disposition
Application for interim conservatory orders declined.
Orders
- No interim conservatory orders are granted at this stage.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
CONSTITUTIONAL PETITION NO. 4 OF 2020
IN THE MATTER OF ARTICLE 63 (1), (2), (b), (d) (3) and (4) ARTICLES 62 (1), (g), ARTICLE 10, 258 AND ARTICLE 10 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 6 (6), (8) AND SECTION 26 OF THE COMMUNITY LAND ACT 2016
AND
IN THE MATTER OF THE WILDLIFE AND CONSERVATION ACT 2013
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES
BETWEEN
LERUK MURUSI ...........................................................................1ST PETITIONER
LECHEKU ANGELE ....................................................................2ND PETITIONER
LRADO STEPHEN LTERIOS .....................................................3RD PETITIONER
LTETIAN LERUPES .....................................................................4TH PETITIONER
STEVE TIMBOR ...........................................................................5TH PETITIONER
LENDODODO LOLBALANGA....................................................6TH PETITIONER
JIMMY LENEEPE..........................................................................7TH PETITIONER
STEPHEN LESOROH GAMBARE...............................................8TH PETITIONER
JAMES MARLENI ..........................................................................9TH PETITIONER
LPIRIKONI NEEPE .....................................................................10TH PETITIONER
PATRICK KURAKI ......................................................................11TH PETITIONER
SAMUEL LOIBARBAN ...............................................................12TH PETITIONER
FRANCIS LEADUMA ..................................................................13TH PETITIONER
AND
THE COUNTY GOVERNMENT OF MARSABIT ...................1ST RESPONDENT
THE CHIEF OF THE KENYA DEFENCE FORCES ..............2ND RESPONDENT
THE CABINET SECRETARY MINISTRY OF DEFENCE....3RD RESPONDENT
THE HON. ATTORNEY GENERAL ........................................4TH RESPONDENT
RULING
1. This court is in the process of hearing and determining the application dated 24. 3.2020. The applicants however pray for conservatory orders in the interim. They contend that the petitioners are challenging the whole process of acquisition of the land since the provisions of the constitution and the community land Act were not followed.
2. The respondents particularly the 2nd and 3rd respondents contend that no prima facie case has been established at this stage and that petitioners are only challenging the process of public participation.They aver that any error can be remedied by way of compensation and that the military is acquiring the land for a public purpose.
3. I find that conservatory orders are usually granted on the inherent merits of a case, bearing in mind the aspect of public interest and constitutional values. – See Gatirau Peter Munya vs Dickson Mwendwa Kithinji and 2 others (2014) eKLR.
4. In the present case, the matter is at the infancy stage, whereby the respondents are yet to file their responses to the application. The court needs to be seized of the full facts appertaining to the dispute before the issuance of any orders.
5. In the circumstances I decline to grant any orders at this stage.
DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF JULY, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties on 1. 7.2020 in the virtual presence of advocates for the parties. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE