https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3276

Saleh & 2 others v National Land Commission & 8 others (Constitutional Petition 44 of 2020) [2026] KEELC 3276 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3276 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Constitutional Petition 44 of 2020 JO Olola, J May 26, 2026 Between Swaleh Hussein Saleh 1st Petitioner Awadh Saleh Said 2nd Petitioner Swaleh Mohammed Saleh Said 3rd Petitioner and The National Land Commission 1st Respondent The Chief Land Registrar 2nd Respondent The Attorney General 3rd Respondent The County Government Of Mombasa 4th Respondent and Iqbal Ahmed Bayusuf 1st Interested Party Ethics and Anti-Corruption Commission 2nd Interested Party National; Environment Management Authority 3rd Interested Party Kenya Urban Roads Authority 4th Interested Party National Construction Authority 5th Interested Party Ruling 1.By the Notice of Motion dated 29th April 2025, the three (3) Petitioners pray for the following orders:d)That pending the hearing and determination of the intended Appeal, this Honourable Court be pleased to issue a conservatory order restraining the Respondents and the 1st Interested Party and/or their agents, servants, assigns or representatives from constructing, alienating, transferring, licensing, registering or otherwise interfering with the parcel of land known as Mombasa / Block XVII/ 1399 or any portion thereof;e)That pending the hearing and determination of the intended Appeal, this Honourable Court be pleased to issue an order maintaining status quo;f)That there be a stay of execution of the judgment delivered on 25th April 2025 and all consequential proceedings and enforcement thereof, including but not limited to taxation or recovery of costs, pending the hearing and final determination of the intended Appeal;g)That this Court do issue such other orders as may be necessary to prevent the abuse of the process of this Court; andh)Costs and interest. 2.The application which is supported by an Affidavit sworn by Swaleh Hussein Saleh (the 1st Petitioner) is premised on the grounds that:i.The Petitioners are dissatisfied with the Judgment and/or decision of this Honourable Court made on 25th April 2025 and have instructed their Advocates to lodge an appeal to the Court of Appeal against the same;ii.The Petitioners have already filed a Notice of Appeal;iii.The intended Appeal is arguable and has high chances of success;iv.The Petitioners stand to suffer immensely as the Respondents and the 1st Interested Party may proceed with construction and/or transfer, alienate or otherwise dispose of the disputed property to third parties thereby permanently altering its character and frustrating the substratum of the Appeal; andv.That such actions will render the intended appeal nugatory, defeat the core reliefs sought, including the restoration of the land as a public access lane and occasion irreparable harm to the petitioners and the public, which cannot be compensated by damages. 3.Iqbal Ahmed Bayusuf (the 1st Interested Party) is opposed to the application. In a Replying Affidavit sworn on 23rd June 2025 by his representative Fahad Iqbal Ahmed Bayusuf, the 1st Interested Party avers that between the time the Petition was filed until the date of the judgment, he has lost the sum of Kshs. 32,400,000/= arising from his intended construction of 60 stalls to rent out at a cost of Kshs. 9,000/=per month. The 1st Interested Party avers that a party who desires to have any orders of stay must provide such security for due performance, which the Applicant has not offered. It is further his case that the Applicants have failed to disclose the harm or loss they stand to suffer if the orders are not grated. 4.In addition to the Replying Affidavit the 1st Interested Party has filed Grounds of Opposition objecting to the application on the grounds that:i.Petition No. 44 of 2020 was fully determined in a lawful judgment delivered on the 25th April 2025;ii.The outcome of that Judgment cannot by any means be interpreted to amount to a denial, violation, threat or infringement of the Applicant's rights or fundamental freedoms to entitle such Applicants to obtain relief by way of a conservatory order;iii.Application for relief of conservatory order can only be filed by the person affected in the High Court and not this Court; andiv.The Applicants' Petition was dismissed in its entirety therefore there is nothing to be stayed. 5.The Chief Land Registrar (the 2nd Respondent) the Attorney General (the 3rd Respondent) and the Kenya Urban Roads Authority (the 4th Interested Party) are equally opposed to the application. In their joint Grounds of Opposition dated 2nd July 2025 they object to the application on the grounds:1.That the application dated 29th April 2025 is misconceived, frivolous, vexatious and an abuse of the process of the Court;2.That the Petitioner herein has enjoyed stay since filing of this Petition. This Court has now made its determination over the issues raised therein therefore any further prayers for stay should be sought at the Appeal Court and not in this Court as this amounts to waste of Court's time;3.That the prayers being sought lack basis as there is no clear indication of the prejudice the Petitioner will suffer if the stay is not granted;4.The orders sought are untenable and a nullity; and5.The Applicant is guilty of laches. 6.Similarly opposed to the application is the County Government of Mombasa (the 4th Respondent). In their Grounds of Opposition dated 3rd July 2025, the 4th Respondent states:a.That the application is inconsistent with Order 42 of the Civil Procedure Rules 2010;b.That the conservatory orders sought by the Petitioner cannot be granted at this stage after Judgment has been dealt entered;c.That this Honourable Court is functus officio with regards to the orders being sought in the application;d.That the ingredients for stay especially security has not been addressed by the Petitioners; ande.That this application is bad in law, premature and vexatious. 7.I have carefully perused and considered both the application as well as the respective responses thereto. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 8.By their application before the Court, the Petitioners pray for this Court to issue a conservatory order, an order for status quo as well as an order of stay of execution of the judgment delivered herein on 25th April 2025 and all consequential proceedings pending the hearing and determination of their intended Appeal. 9.It is the Petitioners case that they are dissatisfied with the said judgment and that they have already lodged a Notice of Appeal in respect thereto. The Petitioners assert that unless the said orders are granted, they stand to suffer immensely as the Respondent and the 1st Interested Party may proceed with construction and/or transfer, alienate or otherwise dispose of the suit property to third parties. 10.The application has been opposed by the 2nd to 4th Respondents as well as the 1st and 4th Interested Parties. It was their case that the application lacks basis as the issues between the parties had been fully determined by the Court in the said judgment and that there was therefore nothing to stay. 11.By their Petition dated 8th December 2020, the Petitioners had sought certain declarations aimed at stopping the 1st Interested Party from carrying out certain constructions on the parcel of land known as Mombasa/Block XVII/1399. Having heard the dispute and in his judgment delivered on 25th April 2025 the Honorable Justice L. Naikuni did find that the Petitioners had failed to prove their claim and proceeded to dismiss the same in its entirety. 12.In delivering the said judgment, the Learned Judge further vacated all orders of status quo that had been issued pending the hearing of the Petition. By their application before the Court, the Petitioners have urged the Court to issue conservatory orders restraining the Respondents and the Interested Parties from dealing with the same property on account that they stand to suffer immensely if the orders are not granted. 13.As the Supreme Court observed in Gatirau Peter Munya-vs-Dickson Mwenda Kithinji & 2 Others (2014) eKLR.“(86)"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." 14.In the matter before me, the Court had in its judgment found that there was no basis upon which to preserve the suit property any longer and had proceeded to discharge the interim orders that were in place. Having delved into those issues as previously raised by the Petitioners, the Court is clearly functus officio and cannot by this new application be asked to consider the same issues which had formed the basis of its judgment. 15.As for the prayer for stay of execution, it was again clear to me that by dismissing the Petition, the result was a negative order that was incapable of being stayed. As the Court of Appeal stated in Co-operative Bank of Kenya Limited -vs-Banking Insurance & Finance Union (Kenya) (2015) eKLR:“An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay - called a "positive order" - either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated: ..... an order for stay of execution must be intended to serve a purpose ....." 16.In the circumstances herein the effect of the dismissal of the Petition was a negative order and an order of stay of execution will accordingly serve no purpose. 17.In the premises I was not persuaded that there was any merit in the Motion dated 29th April 2025. The same is hereby dismissed with costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 26TH DAY OF MAY, 2026.………………………J.O. OLOLAJUDGEIn the presence of:a. Mr. Leakey Court Assistant.b. Mr. Langat Advocate for the Petitionersc. Mr. Tajbhai Advocate for the 4th Respondentd. Mr. Tajbhai holding brief for P. Buti Advocate for the 1st Interested Parties