1. Before the Court is an application under Notice of Motion dated 22nd September 2025 seeking for the following orders:
1) Spent.
2) Spent.
3) Spent.
4) Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents whether by themselves, agents, servants or any person acting under their authority from forcibly relocating Petitioners and businesses from public land comprising the ‘Nyeri upper stage’, ‘Nyeri Middle Stage’ and ‘Nyeri Lower stage’ situated in Nyeri town.
5) Pending the hearing and determination of this Petition, the Honourable Court be pleased to issue a conservatory order restraining the Respondents from alienating, in any manner whatsoever, public land comprising of the ‘Nyeri upper stage’, ‘Nyeri Middle Stage’ and ‘Nyeri Lower stage’ situated in Nyeri town.
6) Pending the hearing and determination of this Petition, the Honourable Court be pleased to issue an order directing the Governor of Nyeri County to submit to the Petitioners a comprehensive human rights impact assessment report that evaluates the effects of forced eviction of petitioners and businesses (and other affected persons such as school-going children) from public land comprising of the ‘Nyeri upper stage’, ‘Nyeri Middle Stage’ and ‘Nyeri Lower stage’ situated in Nyeri town to the ‘Field Marshall Muthoni Kirima Stage.’
7) Pending the hearing and determination of this Petition, the Honourable Court be pleased to issue an order directing the Governor of Nyeri County to submit to the Petitioners copies of title deeds for the entire public land comprising of the ‘Nyeri upper stage’, ‘Nyeri Middle Stage’ and ‘Nyeri Lower stage.’
8) Costs of this application be provided for.
2. The application is supported by the grounds stated and the affidavits sworn by the Judith Wanjiku, Jane Wangechi, Francisca Wanjiku, Peter Miana and Issa Elanyi. The application is anchored under the Constitutional provisions granting protection to persons with disabilities including non-discrimination, equality, legal capacity, physical and mental integrity, dignity and access to education, employment, health and information. The Applicants also claim protection of rights under the Convention on the Rights of Persons with Disabilities 2006 and the Persons with Disabilities Act no.4 of 2025 in relation to the development of an integrated urban transport and market development, infrastructure on public land and decisions on evictions from public land.
3. The substratum of the petition is the decision of the County Government of Nyeri, the 1st Respondent to forcibly evict the Petitioners and other traders from the ‘Nyeri Upper Stage’ Nyeri Middle Stage’ Nyeri Lower Stage’ (hereinafter referred to as “the old stages”) which decision is against the Applicant’s constitutional rights as persons living with disabilities, minorities and marginalized groups.
4. The Petitioners claim that they have established stalls and other small businesses at the old stages, whose proximity to major and interconnected businesses provide a ready market for their goods and services. They further claim that recently, the Respondents dropped huge boulders at the entrances of the areas mentioned and upon inquiring they were informed that they would be moved 4 kilometeres away to another public land known as ‘Field Marshal Muthoni Kirima Stage’ also known as Shakahola (hereinafter referred to as “the new stage”).
5. That the new stage was formerly a graveyard, is desolate, has no adequate lighting and the location is convenient only for persons who have access to private vehicles. The Applicants added that the location is not convenient for persons with disabilities and is generally dysfunctional. It is an insecure area and does not have an established business ecosystem. The Applicants depose that the transition of businesses to the new stage should be voluntary noting that the current location is well organized has no chaos.
6. The Applicants claim that in seeking to move their businesses by force, the Respondent did not conduct adequate, meaningful or qualitative public participation and did not consider their position as persons with disabilities.
7. The Applicants further claim that they are apprehensive that after their evictions there are plans to allocate the public land to well-connected people, thus affecting the economy of Nyeri and its vibrancy as an economic hub.
8. The 5th Petitioner in his affidavit deposed that on 21st August 2025, he came across a public notice published by the County Government of Nyeri that reads as follows:
“The County Government of Nyeri wishes to inform the public that starting from 25th August 2025, all Public Service Vehicles(PSVs) and Sientas will now operate exclusively from the Field Marsahal Muthoni Kirima Terminus”
The Respondents’ Replying Affidavit
9. Edward Irungu Mwangi, the County Secretary of the County Government of Nyeri, swore an affidavit in response to the instant application on the 24th of November 2025. He termed this matter as res judicata, stating that the court, in Nyeri High Court Constitutional Case No. E107 of 2024,Peter Theuri Ndirangu and Another -Vs- County Government of Nyeri, substantively considered the constitutional validity of the County Government's directive dated 4th November 2024 for the relocation of all public service vehicles to their new designated operating and parking spaces, and found that the same satisfied the applicable provisions of the constitution and laws which.
10. He reiterated that the County Government of Nyeri has not issued any separate notice directing the relocation of the petitioners’ businesses or other persons and it is the petitioners who have indicated that they would be constrained to move their business to where the new matatu stage is, not by dint of a directive of the County Government of Nyeri.
11. The Respondents claim that the present petition is speculative an attempt to review and re-litigate the issues of fact and law raised and determined in the said Nyeri High Court Petition No.E017 of 2024 and procure a different decision from that made by the Hon Justice Kizito Magare on 11th June 2025.
12. Further, that the petitioners have not provided sufficient particulars of the constitutional violations pleaded to enable the respondents comprehensively respond thereto and that there are no violations of the constitution as pleaded or at all.
The Petitioners’ written submissions
13. The the Petitioners submit that the judgement in the previous Petition, Ndirangu & 7 Others v County Government of Nyeri (Constitutional Petition No. E017 of 2024) (2025) КЕНС 8212 eKLR does not bar the present Application or Petition on grounds of res judicata or otherwise. That the instant matter is materially distinct, raising fresh constitutional questions concerning the rights of persons living with disabilities (PWDs), elderly persons, and other marginalized groups – vulnerabilities not addressed in prior suit.
14. Further, that the intended relocation translates to a total shutdown of all operations on the new stages which constitutes imminent and irreparable violation of fundamental rights - warranting immediate conservatory intervention to preserve the subject matter.
15. Quoting Section 7 of the Civil Procedure Act on res judicata, the Petitioners submitted that the previous petition and the present one contain different parties being public transport operators (matatu owners and Saccos) and their challenge was on grounds of economic disruption to their operations. That the instant Petitioners herein are small-scale traders, vendors, and business owners predominantly PWDs and elderly persons who operate stalls and derive livelihoods from the 'stages' as the epicentre of Nyeri Town's commercial and transport ecosystem, who were never parties to the previous petition.
16. It was submitted that the previous Petition did not adjudicate the human rights impacts on non-operators, such as traders with disabilities or elderly commuters and raises a novel cause of action, which is the discriminatory eviction of vulnerable groups from public infrastructure violates Articles 27 (on equality and nondiscrimination), 28 (on human dignity), 43 (on economic and social rights), and 56 (on affirmative action for minorities and marginalized groups) of the Constitution of Kenya.
17. It is submitted that the proposed relocation is in violation of Section 5 of the Persons with Disabilities Act, No. 14 of 2025 which mandates the mainstreaming of PWD rights in urban planning and evictions; and the UN Convention on the Rights of Persons with Disabilities (CRPD), domesticated under Article 2(6) of the Constitution.
18. On whether the application has reached the threshold for grant of conservatory orders, the Petitioners invited the Court to apply the threshold laid by the Supreme Court decision of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (2014) eKLR. They also relied on the holding in the case of Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7others (Interested Parties) [2024] KЕНС 13473 (KLR).
19. The Petitioners contend that there was no adequate public participation in a meaningful and qualitative manner. Specifically, the county government did not consider the position of some of the Petitioners as persons with disabilities and the elderly as marginalized groups.
20. Thus, it is their submission that in this instance, the Petitioners have a strong prima facie case and that without the orders sought, the forced eviction (evidenced by the boulders already dumped before by the Respondents to block access) will render the Petition nugatory.
21. It was highlighted that Kenyan courts have consistently emphasized the need for public participation and that it ought to be real and not illusory. Counsel cited the following authorities on this matter:
British American Tobacco Kenya, PLC (formerly British American Tobaссо Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobaссо Kenya Limited (The Affected Party) [2019] eKLR, Institute of Social Accountability & Another versus National Assembly & 4 others [2015] eKLR, Ndirangu & 7 Others v County Government of Nyeri (Constitutional Petition No. E017 of 2024) (2025) КЕHC 8212 eKLR.
22. The Petitioners relied on the 2010 Constitutional order, which they submit creates a regime that protects the rights of minorities and marginalized groups. Specifically, the state is required to ensure that they are granted special opportunities in the economic fields and have reasonable access to public infrastructure. Anything contrary to that results to grave discrimination and adverse violation to their Constitutional rights. They invited this Court to extend safeguards to the unheard voices of Persons with Disabilities, elderly traders and commuters, as they prayed that their application be allowed.
23. Counsel for the Respondents did not file written submissions even after being granted time to do so.
Analysis and Determination
24. The Court has considered the application herein, the replying affidavit and Petitioners’ submissions, and finds that the following issues arise for determination.
A) Whether the instant application and the Petition offend the doctrine of res judicata.
B) Whether the application meets the threshold for grant of the conservatory orders sought.
Whether the instant application and the Petition offend the doctrine of res judicata.
25. The Petitioners claim that their rights as persons with disabilities have been violated by virtue of the Respondents’ directive to relocate the ‘old stages situated in Nyeri town to the ‘the newly constructed stage. They contend that the said area is located far away from the main Central Business District area, is difficult to access and poses a security threat.
26. On the other hand, the Respondents contend that the entire suit is res judicata as the County Government’s directive for relocation was fully canvassed before the High Court at Nyeri in the case of Ndirangu & 7 others v County Government of Nyeri (Constitutional Petition E017 of 2024) [2025] KEHC 8212 (KLR). The Petitioners have vehemently refuted this, stating that this suit does not meet the criteria of a res judicata suit.
27. Section 7 of the Civil Procedure Act establishes the Kenyan statutory basis for the doctrine of res judicata and provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
28. This doctrine was considered by the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) cited by the petitioners herein, where it was held thus:
“There are conditions to the application of the doctrine of res judicata:
(i) the issue in the first suit must have been decided by a competent Court;
(ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and
(iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title. Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.”
29. The Court has considered the judgment of the High Court at Nyeri, Ndirangu & 7 others v County Government of Nyeri (supra) ( the former petition). From the outset, it is noted that the Court has only been supplied with the judgement in the former petition but not the pleadings.
30. The first question for consideration is whether the matter directly and substantially in issue in this petition was directly and substantially in issue in the former petition. The prayers in the former petition were as follows;
i) A declaration that the County Government of Nyeri County Executive Committee Member Transport, Public Works, Infrastructure and Energy order dated 4.11.2024 addressed to the PSV Secretariat and all compliant SACCOs relating to relating to relocation to the newly designated operating and parking spaces was not made in accordance with the provisions of the Constitution of Kenya 2010 and the Fair Administrative Action Act and is unconstitutional as it ignored public input or the Petitioner’s input.
ii) A mandatory order restraining the Respondent through its officials, servants, or agents from implementing the Executive Order dated 4.11.2024.
iii) An Order directing the Respondent to amend/rescind/withdraw the executive order dated 4.11.2024 forthwith.
31. The prayers in the present petition as paraphrased seek declarations that the decision to forcibly evict the Petitioners as persons with disabilities from the old stages to the new stage was in violation of Articles 2 (1) and (6), 10, 54, 56 and 57 of the Constitution of Kenya, International law and guidelines on development based evictions and displacements. The Petitioners claim there was not public participation. The Petitioners seek an injunction to stop the forced eviction and an order directing the Respondents to submit a comprehensive human rights impact assessment report.
32. The Court is of the view that the matters directly and substantially in issue in the present petition, as summarised above, were not directly and substantially in issue in the former petition Nyeri Constitutional Petition E017 of 2024 Ndirangu & 7 others v County Government of Nyeri
33. Further, the Court finds that the parties in the two petitions are different. The Petitioners in the former Petition were Chairpersons of various matatu Saccos named in the petition, that is, 2NK Sacco Ltd, Four NTE Sacco Ltd, Nyenya Sacco Ltd, 3NCK Sacco Ltd, NIM Sacco Ltd, Nyena Sacco Ltd, and Gakanango Sacco Ltd. On the other hand, the Petitioners in this suit claim as individual persons living with disabilities and carrying on various businesses around the location of the old stages.
34. Prom the pleadings and submissions filed, the competency of the High Court at Nyeri to hear and determine the former petition has not been challenged, and the fact that the former petition was heard and finally determined is also not in dispute.
Whether the application meets the threshold for the grant of the conservatory orders sought.
35. The prayers remaining for determination are prayers 4, 5, 6 and 7 of the Notice of Motion dated 22nd September 2025, where the Petitioners seek conservatory orders pending hearing and final determination of this Petition.
36. The nature of conservatory orders were discussed in the locus classicus by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR cited and relied on by Counsel for the Petitioners as follows:
“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. 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.
37. The Court in Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR defined a conservatory order as follows: -
“ A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”
38. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR, the Court had the following to say about the nature of conservatory orders: -
“Conservatory orders, in my view, are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme Law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.
39. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed by Courts over time. They are now well settled as stated by Counsel for the Petitioners in the authority of Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others [2024] KEHC 13473 (KLR) in which the three judge bench enumerated the principles to be considered in granting conservatory orders thus:
“The three main principles for considering an application seeking conservatory orders were as follows:
a. The need for the Applicant to demonstrate an arguable prima facie case.
b. Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
c. Whether, if an interim conservatory order was not granted, the petition or its substratum would be rendered nugatory.”
40. Further, in the case cited above Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (supra) the Supreme Court stated as follows: -
“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 the priority levels attributable to the relevant courses.
42. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others, Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR, the Court summarised three main principles for consideration on whether to grant conservatory orders as follows: -
(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and
(c) The public interest must be considered before grant of a conservatory order.
43. From the outset the Court recognizes the rights of the Applicants to file the Petition herein and the application seeking conservatory orders pending hearing and determination of the petition. The rights are clearly set out under Article 22(1) of the Constitution of Kenya which guarantees the right of every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. In the instant application and Petition, the Petitioners assert their entitlement to rights falling under the provisions of the Constitution, Article 10 which enshrines the Kenyan national values and principles that bind all state organs and officers, which include inter alia, participation of the people and non-discrimination. They also rely on Article 27 (on equality and nondiscrimination), 28 (on human dignity), 43 (on economic and social rights), 54(the rights of persons with disabilities) and 56 (on affirmative action for minorities and marginalized groups).
44. The Court further confirms the Applicants’ entitlement to rights as members of the community of persons living with disabilities under Article 54(1) of the Constitution, which provides that:
(1) A person with any disability is entitled—
(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
(c) to reasonable access to all places, public transport and information;
(d) to use Sign language, Braille or other appropriate means of communication; and
(e) to access materials and devices to overcome constraints arising from the person’s disability.”
45. The question that arises is whether the Petitioner/Applicants have demonstrated an arguable prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that they will suffer prejudice as a result of the violation or threatened violation of the Constitution.
46. The Respondents on their part contend that they have not issued any notices to relocate the Petitioners or other business persons as suggested in the petition. They contend that the Petitioners' claim arises from their business decisions made to move their businesses to where the new bus park is relocating but not due to any directive from the Respondents.
47. Arising from the petition, the Court surmises that the substratum of the Applicants’ claim is that the Respondents made a decision to forcibly evict them from public land situated at old stages within Nyeri Town, where they have established their businesses and to move them to the newly constructed stage which is 3-4 kms away. The Petitioner’s fear was triggered by the Respondent’s acts of dumping boulders to block access to the three matatu stages.
48. The Court has looked at the photographs supplied by the Applicants as a demonstration of the threat of forceful eviction and is not convinced that, prima facie, there is a total shutdown of all operations on the public bus park as claimed. Further, the said photographs do not show that the Applicants have been prevented from continuing to carry on their businesses.
49. The Petitioners also relied on the notice attached to the supporting affidavit of Issah Elanyi Chamao as further proof of the threat of forceful eviction issued by the 1st Respondent, which reads as follows;
“ This is to notify members of the public that pursuant to court directions issued by Hon. Justice Kizito on the 11th of June 2025 in Constitutional Petition E017 of 2024, the County Government of Nyeri hereby directs as follows;
That ALL Public Service Vehicles and Sientas shall operate from the Field Marshal Muthoni Kirima Terminus beginning from the 25th August 2025.
ALL other terminuses will, therefore, be non-operational for the purposes of picking passengers; and any non-compliance with the guidelines issued shall be considered to be in contempt of Court Directions as well as a violation of County Laws, and therefore liable for prosecution.
Detailed guidelines on the relocation to the terminus have been provided to the various Public Service Vehicles and Sientas representatives and owners.
CECM-ROADS, TRANSPORT, PUBLIC WORKS, INFRASTRUCTURE & ENERGY. County Government of Nyeri”
50. The Court observes that on the face of the above notice, the relocation envisaged is of ALL Public Service Vehicles and Sientas which are directed to operate from the Field Marshal Muthoni Kirima Terminus beginning from the 25th August 2025. The business operations that were directed to be discontinued from the current parking places were for the purpose of picking up passengers.
51. The business permits that were attached to the supporting affidavits of the Applicants show that the businesses they operate are: general shop, hotel, electronic shops, retail shop and mpesa, bookshop, butchery with meat roasting, music store, mali mali, hawking without vehicle, accessories and gas, retail shop, gas and mpesa, hawker shop, shoe selling, toys and beauty shop, agrovet, phone and accessories. None of the Applicants claims to be involved in the operation of Public Service Vehicles and Sientas or the business of picking up passengers. In the Court’s view, the businesses operated by the Applicants do not prima facie seem to be the target of the notice of relocation and neither do they appear to be affected and/or envisioned by the said notice.
52. The other observation is that the public notice complained of was issued pursuant to a legal process after the full hearing and final determination of Nyeri High Court petition No. E017 of 2024. As stated earlier, the said petition sought a declaration that the County Government of Nyeri County Executive Committee Member Transport, Public Works, Infrastructure and Energy order dated 4.11.2024 addressed to the PSV Secretariat and all compliant SACCOs relating to relocation to the newly designated operating and parking spaces was not made in accordance with the provisions of the Constitution of Kenya 2010 and the Fair Administrative Action Act and is unconstitutional as it ignored public input or the Petitioner’s input. The Petitioners in the said petition also sought an order restraining the implementation, amendment, rescission and or withdrawal of the said notice. The impugned notice was reproduced verbatim elsewhere in this ruling.
53. Having considered the said notice, the Court is not persuaded that, prima facie, the notice requires relocation of the Applicants herein. In the Court’s considered view, the notice does not constitute a threat of forceful eviction to the Applicants.
54. The Applicants also seek, under prayer number 5, a conservatory order restraining the Respondent from alienating the former stages being public land.
55. The process of alienation of public to a private individual, as claimed by the Applicants, is dealt with extensively under the Land Act, CAP 280 Laws of Kenya. Conversion of public land to private land is provided for under Section 9(2) (a) of the Land Act, which states;
(1) Any land may be converted from one category to another in accordance with the provisions of this Act or any other written law.
(2)Without prejudice to the generality of subsection (1)—
(a)public land may be converted to private land by allocation;
56. The Land (conversion of land) Rules 2017 Regulation 4, 5 and 6 provide an elaborate process for conversion of public land to private land and state as follows;
4(1) Upon receipt of the notification under regulation 3 to convert public land to private land, the Commission consider the notification and shall satisfy itself that—
(a) the land is, at the time of the intended conversion, public land;
(b) the purposes for which it is intended to be used are compatible with land use planning for the respective area;
(c) the land is not part of an ecologically sensitive area;
(d) the conversion complies with any other provisions of the Act or any other law; and
(e) the land is not controlled land as defined in section 12A(1) of the Act.
(2) Where the Commission is satisfied that the land meets the criteria set out paragraph (1), the Commission shall—
(a) in the case of a substantial transaction refer the matter to the National Assembly or County Assembly for approval as the case may be as required by section 9(3) of the Act ; and
(b) in all other cases, invite public consultations in accordance with regulation 5.
(3) Upon receipt of approval from the National Assembly or County Assembly, the Commission shall allocate the land and enter the particulars in the register.
5. Public consultation
(1) Where a conversion does not amount to substantial transactions, the Commission shall, upon satisfying itself of the viability of the conversion, invite comments on or objections on the intended
conversion of public land into private land by—
(a) placing a notice in Form LA 2 set out in the Schedule, in at least two daily newspapers of nation-wide circulation and one newspaper of county-wide circulation;
(b) affixing a notice at the County and Sub-County headquarters, wards and other strategic places within the vicinity of the land;
(c) announcing of the notice in both official and local languages in a radio with nationwide coverage; and
(d) announcing in public barazas and places of worship.
(2) The notice referred to in paragraph (1) shall—
(a) contain a description of the land in issue;
(b) provide the nature of conversion including particulars of the person or persons to whom the
land is intended to be converted;
(c) specify the date, venue and time of the public consultations; and
(d) allow for representations to be received within fifteen days.
(3) The Commission shall receive verbal and written representations.
(4) Upon receipt of the representations from the public on the intended conversion, the Commission shall—
(a) analyze the representations and ascertain the general opinion of the public;
(b) consider all other matters required under this Act or any other law; and
(c) determine, based on the considerations received, whether the conversion ought to be approved.
(5) If the Commission approves intended conversion of the land, it shall allocate the land and enter the particulars in the register.
6. Planning and surveying of the land intended to be converted
The Commission shall require the national or county government to plan, survey, geo-reference and service the land before commencement of the conversion.
57. From the foregoing, the court finds that no evidence has been placed before it of the commencement of the process of conversion of the suit parcels of land from public to private land and allocation to private persons or entities as provided under the Land (Allocation of Public Land) Regulations 2017.
58. The Applicants further sought orders directing the Governor of Nyeri County to submit to the Petitioners a comprehensive human rights impact assessment report that evaluates the effects of forced eviction of petitioners and businesses (and other affected persons such as school-going children) from public land subject matter of the application herein.
59. Having found that prima facie, the Applicants did not show that there is imminent danger of forceful eviction from the suit land, the Court is of the view that the orders sought cannot be granted.
60. Prayer 7 of the application herein seeks an order directing the Governor of Nyeri County to submit to the Petitioners copies of title deeds for the entire public land comprising of the old stages.
61. Article 35 of the Constitution of Kenya provides for the fundamental right of access to information and states that;
(1) Every citizen has the right of access to--
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
62. Section 8 of the Access to Information Act provides for the process applicable in applying for information and states that;
An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.
62. From the foregoing provisions of the law, the Court takes the position that even though the Applicants may be entitled to the information and documents sought, the application to the Court at this stage is premature since they have not shown that they sought the documents, and their request was declined. The burden of proving that the Applicants are entitled to the orders sought clearly lies with them and it is the Court’s view that they have not met the threshold set by the law.
63. The upshot of the above is that the Court finds the Notice of Motion dated 22nd September 2025 to have no merit and the same is hereby dismissed. The costs of the application will abide the outcome of the petition.
Dated, Signed and Delivered via Microsoft Teams at Nairobi, this 27th day of January 2026
In the Presence of:-
Janice Kendi: Court Assistant
Sakari Kibiti holding brief for Miriam Kimundio for the Applicants
No appearance for the Respondents
JudgmentJUDITH WANJIKU VS County Government of Nyeri24 min read
JUDITH WANJIKU VS County Government of Nyeri
Environment and Land Court at Nyeri Environment and Land Court · · L.G. KIMANI