https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4353

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELCL PET NO. E003 OF 2026** **EPHRAIM MAINA……………………1ST PETITIONER/APPLICANT** **RHODA OKIRO...........................2ND PETITIONER/APPLCIANT** **FRANCIS WAMUTU…………………3RD PETITIONER/APPLICANT** **NANCY WANGECI…………………4TH PETITIONER/APPLICANT** **HELLEN NYAMBURA………………5TH PETITIONER/APPLICANT** **ELIZABETH WANGUI………………6TH PETITIONER/APPLICANT** **MERCY WANJIKU…………………7TH PETITIONER/APPLICANT** **CHARITY MUTHONI………………8TH PETITIONER/APPLICANT** **MARY GATHONI……………………9TH PETITIONER/APPLICANT** **JOSEPH NJOGU…………………10TH PETITIONER/APPLICANT** **AGATHA MUTHONI………………11TH PETITIONER/APPLICANT** **EUNICE MUNYINGI………………12TH PETITIONER/APPLICANT** **MAGDALENE WACHEKE………13TH PETITIONER/APPLICANT** **VERSUS** **THE COUNTY GOVERNMENT OF LAIKIPIA..1ST RESPONDENT** **JOSEPH MUNENE MIHUNYO……………….….2ND RESPONDENT** **RULING** 1. This suit was filed by way of a petition dated 12.5.26 in which the petitioners aver that sometime in January 2025, the respondents affixed a public notice dated 29.1.2025 communicating an intended change of user for plot no Nanyuki Municipality Block 8/1024 and 1030, both registered in the name of 2nd respondent from residential to commercial cum residential Multi dwelling units ( Apartments), which notice invited comments and objections to the intended change of user within 14 days. 2. That the petitioners who are small scale businesses owners operating kiosks adjacent to the suit parcel, and some stay within the estate where proposed change of user has been made lodged formal objections to the aforementioned change of user. They did not get a response until 17.7.2025 indicating that approvals were given on 5.3.2025. And on 11.3.2026, the petitioners received a letter threatening to evict them. The petitioners contend that the change of user is unlawful and seek orders inter-alia, the quashing of the aforementioned approvals. 3. The petitioners also filed an application dated 25.5.2026 which is the subject matter of this ruling. They seek orders that; **“** 1. **Spent.** 2. **THAT this Honourable court be pleased to issue conservatory orders restraining the respondents whether by themselves, their agents or servants from evicting, obstructing or otherwise interfering with the applicant’s occupation, possession and operation of the kiosks adjacent to parcel numbers Nanyuki Municipality Block 8/1024 and Nanyuki Municipality Block 8/1030 pending the hearing and determination of this application.** 3. **THAT this Honourable court be pleased to issue conservatory orders restraining the respondents whether by themselves, their agents or servants from evicting, obstructing or otherwise interfering with the applicant’s occupation, possession and operation of the kiosks adjacent to parcel numbers Nanyuki/Municipality Block 8/1024 and Nanyuki Municipality Block 8/1030 pending the hearing and determination of the petition.** 4. **THAT this Honourable court be pleased to issue status quo over all those properties known as Nanyuki Municipality Block 8/1024 and Nanyuki Municipality Block 8/1030 pending the hearing and determination of the application.** 5. **THAT this Honourable court be pleased to issue status quo orders over all those properties known as Nanyuki Municipality Block 8/1024 and Nanyuki Municipality Block 8/1030 pending the hearing and determination of the petition.** 6. **THAT the Honourable court be pleased to issue any other orders, as it may deem fit so as to preserve the subject matter of the petition.** 7. **THAT the costs of this application be provided for.”** 8. The application is premised on the grounds on the face of the application and the supporting affidavit of the 1st petitioner. The applicants have reiterated the averments set out in the petition. They argue that their occupation and use of the area adjacent to the suit properties arose from allocation made by the former Municipal Council of Nanyuki, being the predecessor of the 1st respondent and have continuously been recognized through the issuance and renewal of business licences by the 1st respondent over a decade. 9. They argue that eviction is imminent, yet they eke out their living from their kiosks, adding that they have acquired protected economic interests and legitimate expectations under various Articles of the Constitution by virtue of their long standing occupation and regulatory recognition. They contend that the substratum of the dispute will be defeated unless the orders sought for are granted. 10. The application was served but no response was filed. Under such circumstances, should the orders sought be granted? In the case of **Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR**, the Supreme Court of Kenya stated that; **“ Be that as it may, as a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted”.** 1. Guided by the above case law, I find that this court has a duty to look into the merits of the current application, even if the same is unopposed. 2. I have considered the documents so far filed in this suit, the applicants are challenging the approvals of development issued to the 2nd respondent on 11.3.2026 averring that they stand to be affected by such change of user. 3. In **Gatirau Peter Munya vs Dickson Mwendwa Kithinji and 2 others [2014]eKLR** the court had this to say on the issue of conservatory orders. **‘Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate 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. Conservatory orders, consequently, should be granted on the inherent merit of the case*,* bearing in mind the public interest*,*the constitutional values*,* and the proportionate magnitudes, and priority levels attributable to the relevant causes.** 1. While in **Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) [2023] KESC 14 (KLR) (Constitutional and Judicial Review) (17 February 2023) (Judgment) Neutral citation: [2023] KESC 14 (KLR),** the Supreme Court of Kenya stated that; **“Conservatory orders are not ordinary civil law remedies but are remedies provided for under the Constitution ,the Supreme Law of the Land…”** 1. The crux of the matter relates to approvals for the development issued to the 2nd respondent. However, matters of development approvals are governed by a legal framework anchored under the Physical Planning and Land Use Act of 2019 and the attendant regulations 2. On the claim that the petitioners have occupied the area for a long time, thus they have a legitimate expectation to be protected, I find that it has not come out clearly as to whether the applicants are asserting some form of ownership of the area they occupy, or that they are facing imminent eviction. From whichever angle one looks at the issues, they lack the flavour of public interests as set out in the above cited case law. In other words, the petitioners are in pursuit of their own private interests. 3. The court has scrutinized the documents availed by the petitioners. The documents allowing them to put up kiosks bear the heading “Harmonization/Relocation of Hawkers” where the **Municipal Council of Nanyuki** resolved that **standard Kiosks be erected on temporary basis.** The letters were issued as from march 2009. There are no documents to indicate that the aforementioned allocation letters were ever revised to vary the tenure system from temporary to permanent. That being the case, it follows that the occupation of the petitioners in the area in question remains temporary and has to be in tandem with the laid down planning policies of the County of Laikipia. 4. At this juncture, I find it necessary to reproduce the preamble of the **Physical and Land Use Planning Act**, where it is provided that it is ; **“ AN ACT of Parliament to make provision for the planning, use, regulation and development of land and for connected purposes..”** 1. Further, "land use planning" is defined in the said act as; **“The process of designating, regulating, evaluating, zoning and organizing the present and future use and development of land in all its geographical areas and its resources to secure the physical, economic and social efficiency, health and well-being of urban and rural communities.”** 1. There are bodies like the County Physical Land Use and Planning Consultative Forums, which have the statutory mandate to guide the counties in matters planning. At this infancy stage of the suit, this court would be hesitant to delve into matters as to whether kiosks operations should or should not continue in light of the aforementioned legal framework governing matters of planning and land use. 2. Of great concern is the fact that all the letters of eviction availed by the petitioners read as follows; **“ You have been illegally and wrongfully occupying our client’s piece of land No Nanyuki Municipality block 8/1024 without any colour of right, authority or permission from our client and have constructed temporary stall on the same full particulars whereof are well within your knowledge.”** 1. Could this be a case where the petitioners are in occupation of private land?. Again this remains a question to be determined at the trial. Further, it is noted that all the persons who have been issued with the notices namely; Rosemary Wanjiru, Mary Ngugi, Alice Ndirangu, Caroline Muthoni, James Maina, Joy Nduta, Lelo Sheriff Lelo and Mary Ndururi Wanjiku are not the petitioners. 2. This far, I come to the conclusion that the application dated 25.5.2026 is not merited, the same is hereby dismissed with no orders as to costs. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 8TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **M/s Kiambati h/b for Mr. Mbae for petitioners** **Absent for respondent**