https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2923

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELCLPET NO. E025 OF 2025** **JOSEPH KARIUKI WAWERU ………….. ………….....…………...…PETITIONER** **VERSUS** **LAMU COUNTY EXECUTIVE COMMITTEE MEMBER** **FOR LANDS PHYSICAL PLANNING HOUSING** **AND URBANISATION AND 6 OTHERS …………..……….…... RESPONDENTS** **RULING** 1. The petitioner’s application dated 1/10/2025 seeks an injunction to restrain any interference with **Land Portion No 736/Lake Kenyatta 1** measuring **4.1** ha. Pending the hearing and determination of the petition herein. The petitioner claims to have developed that portion extensively. However, the County Government of Lamu has through its officers moved onto the suit property and after planting beacons, commenced the construction of a perimeter wall around it. 2. The applicant lacks title to that portion of land. His narrative of events is that he and Mpeketoni Youth Polytechnic (hereinafter also referred to as “MYP”) were issued to letters of allotment at the same time but to different parcels. Whereas the applicant was issued a letter of allotment to Parcel No 2741/Lake Kenyatta 1, the MYP was issued with letters for two plots, Nos 76-Mpeketoni Township and 736/Lake Kenyatta 1. The petitioner had however occupied the latter plot (716) and occasioned massive development thereon. For that reason, and for the reason that MYP had occupied its first plot (76), the Director of Land Adjudication and Settlement recommended rectification of the records to reflect the ground situation and consequently the petitioner at the instance of authorities surrendered his letter of allotment to plot no 2741 on 30/9/2004 to facilitate the rectification exercise. However, to date the rectification has never materialized. The local District Land Adjudication and Settlement Officer has despite recommendation of the headquarters office refused to effect the rectification and the petitioner avers that he has remained vulnerable as can be seen in the beaconing and fencing by the County which, according to the petitioner, amounts to compulsory acquisition of the land without compensation. Despite the foregoing, the petitioner resides on Plot No 736 to date. The said situation has been occasioned by the laxity of the 3rd 4th and 5th respondents in rectifying the records as recommended by the Director of Land Adjudication and Settlement. The petitioner claims that his constitutional right to own property has been infringed. 3. The application is supported by the sworn affidavit of the petitioner in which he reiterates the matters set out herein above and attaches photographic and other evidence. I have noted in particular correspondence that appears to outline how the petitioner came to be on plot no 736. **RESPONSES** 1. The 1st, 2nd and 7th respondents filed a single affidavit sworn on their behalf by Hafswa Abdalla Difini, the Chief Officer for Education, Technology, Sports, Youth, Gender, Social Services, and Community Development in the County Government of Lamu. From their response, Lake Kenyatta Settlement Scheme had myriad problems prompting the Government to appoint a Task Force to determine them; that pursuant the Task Force Report the MYP was offered **10** acres; that from the excerpts of the task force report the Plot 736 was reserved for a public utility and was issued with a letter of allotment; the land was however charged to the SFT; that the MYP paid the requisite 10% downpayment; that a title deed was issued in its name in 2006; that as per the constitutional devolution of functions the MYP now falls under the County Government; that the MYP is expected to grow with time hence the allotment of plot no 736 to it for future expansion; that the petitioner trespassed onto the suit land inn 2025 and has an incomplete house on the suit property which he began building in 2025 and he also subsequently sank a shallow well to legitimize his claim; ADR failed to resolve the issue. That the petitioner lost **Plot No 2741** to a religious organization for non-payment of the SFT loan which led to his non-documentation; that a ground status report was requisitioned by the County Land Adjudication Officer following complaints by MYP regarding the petitioner’s activities on the land; that the allegations by the headquarters office of the Director of Land Adjudication and Settlement that there was double allocation were without basis since there was evidence of correspondence stating that MYP had paid for and occupied the suit property. The allegation that the plot was transferred to the petitioner by the Task Force was also dismissed as untrue. **ANALYSIS AND DETERMINATION.** 1. I have considered the application, the responses and the submissions of the parties. Allocation of land in settlement schemes to citizens is not the concern of the County Government. There is indication that the Ministry of Lands in the National Government, which was dealing with the allocation of plots in the settlement scheme has written some correspondence which appear to be in favour of the petitioner and which the County Government dismisses as without any basis. 2. There is also no doubt that the petitioner has some developments on the suit land. The 7th respondent itself has some land which it is already using and it is not currently using the suit land. 3. The allegation that the plot was transferred to the petitioner by the Task Force, which has been dismissed as untrue by the 1st, 2nd and 7th respondents, has yet to be scrutinized by this court in an in-depth merits assessment of the main petition. 4. Though it is stated that the suit land will provide for the 7th respondent room for expansion in the future, this court has to consider whether the Government has by the recommendations made by the Director of Land Adjudication Office Headquarters sufficiently committed the land to the plaintiff so as to remove it from the reach of the 7th respondents and this requires a substantive hearing of the main petition. However, it can be said for now that due to the correspondence emanating from the Ministry Headquarters and the developments effected by the petitioner on the ground, in order to protect any possible accrued rights of the petitioner, there is need to conserve the subject matter of the petition from any further changes that may substantially alter its nature before the finalization of the present petition. That can only be done by way of an order of this court but this court also thinks the said order should apply to all the parties. 5. The petitioner has sought an injunctive order rather than a conservative order as is usually sought in petitions. Injunctions are usually applied in private law litigation. Conservatory orders are sought in public law. They “bear a more decided public-law connotation”, to use the words in *Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR.* It was stated in that case that: *“…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 supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”* 6. Notwithstanding the foregoing, it is the view of this court that the intended purpose of the orders sought in this case is to curtail any further developments on the suit land by public authorities. This being an application within a constitutional application and the applicant having sought injunction rather than conservatory orders, and this court having deciphered that his intent is to preserve the subject matter of the suit, it is inclined to issue, not an injunction in the terms that he seeks, but to issue an order of maintenance of *status quo* which would have the same results as a conservatory order. 7. Consequently, this court hereby in disposing of the application dated 1/10/2025 hereby orders as follows: 1. ***All the parties shall maintain the status quo of the suit land both on the ground and in the titles register prevailing as at the date of the issuance of this order until the hearing and determination of the main petition;*** 2. ***The respondents shall ensure that their responses to the main petition are in place within 21 days from today;*** 3. ***The petitioner shall have leave to, if necessary, file within 7 days of service of the responses a further affidavit but only to the issues raised in the respondents’ responses;*** 4. ***The petition shall be mentioned on 19th June 2026 for issuance of further directions as to hearing;*** 5. ***The costs of the application shall be costs in the main petition;*** **Dated, signed and issued at Malindi on this 14th May 2026.**  **MWANGI NJOROGE** **JUDGE, ELC MALINDI.**