Leruk Murusi,Lecheku Angele,Lrado Stephen Lterios,Ltetian Lerupes,Steve Timbor,Lendododo Lolbalanga,Jimmy Leneepe,Stephen Lesoroh Gambare,James Marleni,Lpirikoni Neepe,Patrick Kuraki,Samuel Loibarban & Francis Leaduma v County Government of Marsabit,Chief of the Kenya Defence Forces,Cabinet Secretary Ministry of Defence & Attorney General [2020] KEELC 1711 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

CONSTITUTIONAL PETITION NO. 4 OF 2020

IN THE MATTER OF ARTICLE 63 (1), (2), (b), (d) (3) and (4) ARTICLES 62 (1), (g), ARTICLE 10, 258 AND ARTICLE 10 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF SECTION 6 (6), (8) AND SECTION 26 OF THE COMMUNITY LAND ACT 2016

AND

IN THE MATTER OF THE WILDLIFE AND CONSERVATION ACT 2013

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES

BETWEEN

LERUK MURUSI ...........................................................................1ST PETITIONER

LECHEKU ANGELE ....................................................................2ND PETITIONER

LRADO STEPHEN LTERIOS .....................................................3RD PETITIONER

LTETIAN LERUPES .....................................................................4TH PETITIONER

STEVE TIMBOR ...........................................................................5TH PETITIONER

LENDODODO LOLBALANGA....................................................6TH PETITIONER

JIMMY LENEEPE..........................................................................7TH PETITIONER

STEPHEN LESOROH GAMBARE...............................................8TH PETITIONER

JAMES MARLENI ..........................................................................9TH PETITIONER

LPIRIKONI NEEPE .....................................................................10TH PETITIONER

PATRICK KURAKI ......................................................................11TH PETITIONER

SAMUEL LOIBARBAN ...............................................................12TH PETITIONER

FRANCIS LEADUMA ..................................................................13TH PETITIONER

AND

THE COUNTY GOVERNMENT OF MARSABIT ...................1ST RESPONDENT

THE CHIEF OF THE KENYA DEFENCE FORCES ..............2ND RESPONDENT

THE CABINET SECRETARY MINISTRY OF DEFENCE....3RD RESPONDENT

THE HON. ATTORNEY GENERAL ........................................4TH RESPONDENT

RULING

1. This court is in the process of hearing and determining the application dated 24. 3.2020.  The applicants however pray for conservatory orders in the interim.  They contend that the petitioners are challenging the whole process of acquisition of the land since the provisions of the constitution and the community land Act were not followed.

2. The respondents particularly the 2nd and 3rd respondents contend that no prima facie case has been established at this stage and that petitioners are only challenging the process of public participation.They aver that any error can be remedied by way of compensation and that the military is acquiring the land for a public purpose.

3. I find that conservatory orders are usually granted on the inherent merits of a case, bearing in mind the aspect of public interest and constitutional values. – See Gatirau Peter Munya vs Dickson Mwendwa Kithinji and 2 others (2014) eKLR.

4. In the present case, the matter is at the infancy stage, whereby the respondents are yet to file their responses to the application. The court needs to be seized of the full facts appertaining to the dispute before the issuance of any orders.

5. In the circumstances I decline to grant any orders at this stage.

DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF JULY, 2020

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this ruling was given to the parties on 1. 7.2020 in the virtual presence of advocates for the parties.  In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail.  They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE