Abdulmajid Ramadhan & 3 others v Kenya Urban Roads Authority & 4 others [2017] KEELC 2732 (KLR)
The bottom line
#The court allowed Kibra's road project to proceed but protected Nubian residents from eviction until a resettlement plan is in place.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioners have established a prima facie case of violation or threatened violation of their constitutional rights
- 2.Whether the petitioners would suffer injury if the conservatory orders sought are not granted
- 3.Whether it would be in the public interest to grant the conservatory orders sought
Key legal issues
#Whether the petitioners established a prima facie case of violation or threatened violation of their constitutional rights
No prima facie case was established. The court was satisfied the Nubians had lived at Kibra for decades and that houses were marked for demolition, but could not determine at the interlocutory stage the nature of the Nubians' rights over the land; absent title, the petitioners' entitlement to compensation and their property claim could not be affirmed.
The court acknowledged the historical presence of the Nubians in Kibra since about 1918-1919 and accepted that houses had been marked for demolition. However, the petitioners produced no title documents; their claim rested on an ancestral/communal land assertion which the court held required fuller hearing and possibly crystallization under the Community Land Act. The court found public participation had been carried out without discrimination and that the EIA licence issue belonged to another forum.
Whether the petitioners would suffer injury if conservatory orders were not granted
Yes, injury was likely, but that alone is insufficient; the injury must be threatened by an unlawful act.
The court accepted that demolition of homes would cause the petitioners injury and suffering. However, it held that a conservatory order must prevent injury occasioned by unlawful conduct. Since the road was a public project on land whose ownership was unresolved, and the government was entitled to compulsorily acquire land for public purposes upon payment of just compensation, the threatened demolition could not be characterised as unlawful at that stage.
Whether it would be in the public interest to grant the conservatory orders sought
No. The road is a public project intended for the benefit of the public, the petitioners included, and public interest outweighed the petitioners' private interests.
The court observed that the road link would ease traffic in Nairobi City County and that the government lawfully could compulsorily acquire land for the project. It noted that if at the hearing the petitioners were found to have rights over the land, appropriate compensation orders could then be made. Public interest in the completion of the road project therefore favoured refusal of the conservatory relief sought.
Legal principles established
#- An applicant for a conservatory order under rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 must demonstrate a prima facie case, that prejudice or injury will result unless the order is granted, and that it would be in the public interest to grant the order
- Conservatory orders bear a public-law connotation and are to be granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, unlike interlocutory injunctions which focus on private-party issues
- A conservatory order cannot be granted solely on the basis of the possibility of injury occurring; the injury to be prevented must be occasioned by or threatened by an unlawful act
- The government has a right to compulsorily acquire private property for public purposes or in the public interest provided it pays just compensation to the owner
Court orders
#- 1.Dismissal of the Notice of Motion dated 5th August 2016 seeking conservatory orders
- 2.Order that the petitioners be included in the Langata/Kibera Roads Committee
- 3.Order that the petitioners be actively involved in the Resettlement Action Plan (RAP) for the Project Affected Persons (PAP)
- 4.Order that the 1st, 2nd and 5th respondents shall not evict or demolish the houses belonging to the petitioners until the agreed resettlement plan for the persons affected by the road project is put in place
- 5.Order that each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 40, 43(1)(b), 63, 27, 28 and 10 of the Constitution of Kenya, 2010, read with rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Conservatory orders restraining the respondents from the threatened eviction, demolition or destruction of the Nubians' homes, properties and graveyards at Lindi, Kambi Aluru and Mashimoni (Plots 40, 41 to 106) for purposes of building the road through Kibra, Nairobi
The petitioners failed to establish a prima facie case; their injury could not be prevented where the threatened act was not shown to be unlawful, and the public interest in the road project outweighed their private interests
Conservatory orders of stay restraining the respondents from threatening, interfering with or impeding the life and livelihood of the members of the Nubian community residing at Lindi, Kambi Aluru and Mashimoni
The same test for conservatory orders was not satisfied; the possibility of injury alone is insufficient and the threatened injury was not occasioned by an unlawful act
Conservatory order directing the OCS and OCPD Kilimani to enforce the orders sought
Being consequential to the conservatory orders which were declined, this relief was not granted
Costs
Each party shall bear its own costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
an applicant for a conservatory order under rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 must demonstrate that:(i) He has a prima facie case.
A conservatory order cannot however be granted solely on the basis of the possibility of an injury occurring. The injury to be prevented by the court must be occasioned by or threatened by unlawful act.
In the final analysis and for the foregoing reasons, I find no merit in the Notice of Motion dated 5 th August 2015 which I hereby dismiss.
I order further that the 1st, 2nd and 5th respondents shall not evict or demolish the houses belonging to the petitioners until the agreed resettlement plan for the persons affected by the road project in question is put in place.
Each party shall bear its own costs of the application.
Issues in the judgment
#The dismissal order in the final paragraph refers to the Notice of Motion dated 5th August 2015, whereas the application before the court was introduced as dated 5th August 2016, an apparent internal date inconsistency
The 1st and 2nd respondents' submissions attribute a replying affidavit sworn on 18th January 2017 to the 4th respondent, but that further affidavit was in fact sworn by Abdulkadir Ibrahim Jatani for the 1st respondent, an internal inconsistency in the judgment's account of the parties' affidavits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulmajid Ramadhan & 3 others v Kenya Urban Roads Authority & 4 others [2017] KEELC 2732 (KLR)", Case Analysis (2017). Petition dated 5th August 2016 (Nairobi, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2732/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.