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ELCDismissedNot stated in judgment (related to ELC Petition struck out on 5th November 2025)

Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025) (Environment and Land) [2026] KEELC 1260 (KLR)

Environment and Land Court
5 March 2026
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Voi (E. K. Wabwoto, J) determined the Petitioner's Notice of Motion dated 22nd November 2025 seeking conservatory orders - injunctions restraining eviction and demolition on Plot Numbers Taveta/Taveta Scheme Phase 1/001-2339 and Phase 2/001-3205, and prohibitions against arrest - pending a proposed appeal to the Court of Appeal against a ruling of 5th November 2025 striking out the Petition. The application, supported by an affidavit of David Kioli Ngala, was brought under Order 42 Rule 6 of the Civil Procedure Rules, Articles 22, 23 and 165(3)(b) of the Constitution and Rules 21, 23 and 24 of the Mutunga Rules. The Petitioners, claiming occupation of 15 to 50 years, argued an arguable appeal, substantial loss and the nugatory-appeal test per Gatirau Peter Munya. The 13th Respondent opposed via a Preliminary Objection and Replying Affidavit, contending the court, having struck out the Petition, was functus officio and the Court of Appeal was seized of the matter. Framing the sole issue as whether conservatory orders can issue pending appeal after a petition is struck out, the court held they cannot: conservatory orders are ancillary reliefs requiring a subsisting cause; a striking-out order is a negative order incapable of being stayed (Western College v Oranga), and granting relief would indirectly reinstate the struck-out Petition. Following Josephine Wairimu Kinyanjui, Dofu v Ngome and Karage v CS Interior, the court dismissed the application with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court can grant any conservatory orders in form of injunction or prohibition pending appeal upon striking out of a petition or suit

Key legal issues

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01

Whether the court retains jurisdiction to grant conservatory orders pending appeal after striking out the Petition

Holding

No. The striking out conclusively determined the matter; conservatory orders require a subsisting cause and granting them would indirectly reinstate a struck-out petition.

Reasoning

The court relied on the Supreme Court's clarification in the Peter Munya case that conservatory orders preserve the subject matter of a dispute and are ancillary to a subsisting cause. Having struck out the Petition on 5th November 2025, the court conclusively determined the matter, became functus officio, and had no pending cause to preserve. It applied Western College v Oranga on negative orders and followed Josephine Wairimu Kinyanjui, Dofu v Ngome and Karage v CS Interior, holding that interim relief collapses with the struck-out petition.

p. 5
02

Whether the 13th Respondent's Preliminary Objection on jurisdiction was merited

Holding

Implicitly yes, as the application was dismissed for want of jurisdiction to preserve a cause no longer before the court.

Reasoning

The court framed the single issue as whether it could grant conservatory orders pending appeal after striking out a petition. Answering it negatively, the court found the application could not stand, and dismissed the Notice of Motion, effectively upholding the Preliminary Objection without separately pronouncing on the other grounds such as abuse of process.

p. 6

Legal principles established

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  • Conservatory orders are ancillary reliefs anchored on a subsisting cause; once a petition is struck out there is nothing to preserve and the court becomes functus officio
  • An order striking out a petition is a negative order, incapable of being stayed

Court orders

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  1. 1.The Notice of Motion dated 22nd November 2025 is dismissed
  2. 2.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23 and 165(3)(b) of the Constitution of Kenya, 2010; Order 42 Rule 6 of the Civil Procedure Rules, 2010

Relief refused

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Conservatory orders of injunction restraining eviction/demolition and prohibition of arrests pending appeal

Conservatory orders are ancillary reliefs requiring a subsisting cause; the Petition had been struck out, leaving nothing to preserve and no positive order capable of being stayed

p. 6

Costs of the application

Each party to bear own costs

p. 6

Costs

Each party to bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Conservatory orders are ancillary reliefs and must be anchored upon a subsisting constitutional cause and that once a Petition is struck out, there is no pending matter before the Court capable of preservation, and any application for conservatory relief becomes academic.
p. 6Ancillary nature of conservatory orders
an Order striking out a Petition is a negative order to the efiect that it does not commend any positive act as it merely terminates the proceedings.
p. 5Striking out as a negative order incapable of stay
Consequently, the Notice of Motion dated 22nd November 2025 is hereby dismissed. Each party to bear own costs.
p. 6Final orders - dismissal of the application

Issues in the judgment

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minor

Judgment does not state the case number of the application or the underlying petition it relates to; it only references the ruling of 5th November 2025 striking out 'the Petition' and a separate petition, ELC Petition No. 6 of 2019

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musembi & 9 others v Attorney General & 12 others (Constitutional Petition E007 of 2025)  (Environment and Land) [2026] KEELC 1260 (KLR)", Case Analysis (2026). Not stated in judgment (related to ELC Petition struck out on 5th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1260/eng@2026-03-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.