Solomon Kirera Mutungi, Peter Mwongera, James Muthuri M’mungania, Fredrick Mugambi Mairuki, Fridah Gacheri, Cornelius Muthuri Kirera, Isaac M’mbogori M’itimitu, Stephen Mworia, Njagi Ngetu, Patrick Gakuubi M’kirinya t/a Pakelex Dry Cleaners, Paul Gitonga & Justus Mbaya Mugambi v Meru County Government [2015] KEHC 1207 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CONSTITUTIONAL PETITION NO. 2. OF 2015

IN THE MATTER OF ARTICLES 22 AND 23 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF PROTECTION OF THE RIGHTS TO PRIVATE PROPERTY UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010

AND IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20,22,23,40, AND 159 OF THE CONSTITUTION OF KENYA 2010

SOLOMON KIRERA MUTUNGI .............................................................1ST PETITIONER

PETER MWONGERA..............................................................................2ND PETITIONER

JAMES  MUTHURI M’MUNGANIA ........................................................3RD PETITIONER

FREDRICK MUGAMBI MAIRUKI.............................................................4TH PETITIONER

FRIDAH GACHERI....................................................................................5TH PETITIONER

CORNELIUS MUTHURI KIRERA.............................................................6TH PETITIONER

ISAAC M’MBOGORI M’ITIMITU.............................................................7TH  PETITIONER

STEPHEN MWORIA ................................................................................8TH PETITIONER

NJAGI NGETU...........................................................................................9TH PETITIONER

PATRICK GAKUUBI M’KIRINYA T/A PAKELEX DRY CLEANERS...1OTH PETITIONER

PAUL GITONGA ......................................................................................11TH PETITIONER

JUSTUS MBAYA MUGAMBI...................................................................12TH PETITIONER

VERSUS

THE MERU COUNTY GOVERNMENT.........................................................RESPONDENT

R U L I N G

This application is dated 13/01/2015 and seeks orders:-

1. THAT this application be certified urgent and service be dispensed with in the first instance.

2. THAT this Honourable Court be pleased to issue temporary  conservatory orders to restrain the respondents, the County Minister of Lands and any other employee or agent of the Respondent from fencing off or interfere with the Petitioners rights over their leasehold properties namely L.R. No MERU MUNICIPALITY BLOCK 11/736, 719, 738, 732, 728, 725, 729, 730, 722, 735 and 737 pending the hearing and the determination of this application interparties.

3. THATthis Honourable  Court be pleased  to issue temporary conservatory orders to restrain the respondents, the County Minister of lands and any other employee or agents of the  Respondents from fencing off or interfere with the petitioners rights over their leasehold properties namely L.R. No. MERU MUNICIPALITY BLOCK 11/736, 719, 738, 732, 728, 725, 729, 730, 722, 735 and 737 pending the hearing and determination of this petition.

4. THAT this Honourable Court be pleased to issue conservatory orders directed at the respondent to remove the bill board declaring the petitioners leasehold properties as the property of the Meru County Government pending the hearing and determination of this application and the main petition.

It is supported by the Affidavit of James Muthuri the 3rd Petitioner and has the following grounds:-

a) THAT the petitioner  are the lawfully registered owners of their respective leasehold properties and the respondent is threatening and has started to fence off and block the petitioners from accessing their private property.

b) THAT the respondent’s predecessor relinquished its rights over the petitioners  leasehold properties and the respondent has no  legal capacity to interfere.

c)  THAT the Petitioner’s have paid dearly for their  respective properties whose certificates  of lease were granted by the Government of Kenya which has never been revoked or compulsorily acquired.

d) The Petitioners have paid the requisite rents and rate to the respondent for the said properties and their predecessor the Municipal Council of Meru.

On 02/11/2015  the parties proffered a Consent dated 2/11/2015  which asked the Court to adopt as its order. The Consent is in the following terms:-

“By Consent”

1. THAT the application by the Petitioners dated the 13th day of January, 2015 be allowed in terms of Prayer 3 pending the hearing and determination of the Petition.

2. THAT there be no orders as to costs.

3. THAT the Petitioners be granted 30 days leave within which to file a Supplementary Affidavit to the Petition and leave to the Respondents  to respond if need be.

The Consent is duly signed by the Advocates representing the parties.

The Consent is adopted as an order of this Court.

It is so ordered.

Delivered in open Court at Meru  this 2nd day of November, 2015 in the presence of:-

CC: Lilian/ Daniel

Gikunda Anampiu for Petitioners

Laichema for Respondent.

P. M. NJOROGE

JUDGE