MOLO RIVER ROSES LIMITED VS THE DIRECTOR OF SURVEY AND NAKURU COUNTY SURVEYOR AND 5 Others

2.    The Notice of Motion Application dated 2nd   June, 2025,  seeks the following orders:

3.    The application is supported by the annexed affidavit of Andrew Wambua  sworn on 2nd June, 2025, where he deponed that he is the Managing Director of the Petitioner who is the registered proprietor of the parcel of land known as RONGAI/LENGENET BLOCK 6/11 measuring approximately 288.93 hectares having obtained title to the property on 19th October, 2016.

4.    Mr Wambua  further deponed that  the Petitioner obtained the said parcel of land  after  subdivision of parcel of land known as LR. NO 487/26/4  which parcel was registered in the name of His Excellency Daniel Toroitich Moi (Deceased). Further that in 2009,  His Exellency Daniel Moi sought to purchase freehold interest over the said  parcel of land that he  had acquired in 1971, which, application was approved vide a letter dated 25th November 2009

5.     It was the deponent’s case that  pursuant to the approval, subdivision was done into eight portions a and re- alignment of the road where His Excellency Moi, donated about 35 acres of land to host the new Nakuru –Ravine Road.  That on 29th September 2011 the District Surveyor wrote a letter of No. Objection to the   to the proposed subdivision   and rod re-alignment which was forwarded to the Deceased.

6.    Mr Wambua also stated that the office of the 3rd Respondent vide a letter dated 21st March 2012 informed the proprietor of the parcel of land that his application had been allowed but on condition that he surrenders the original  title  to the property  in exchange of  the resultant eight new titles  and the government road free of any costs.

7.     He further sated that the scheme plans that were forwarded only contained one road which did not cut across the suit land and that there was no proposal for a foot path or any access road on the parcel of land, which is confirmed by the Registry Index map (RIM).

8.    According to the deponent, on 6th June 2025, the Petitioner became aware of a letter  by the 1st  Respondent (  The Director of Survey) addressed to the Surveyor who undertook  the subdivision, purporting to cancel the approved cadastral survey plan F/R No. 381/8, on the grounds that an alleged 30 meter road reserve had not been accommodated in the 2016 plan.

9.     Mr. Wambua further deponed that  the petitioner was  neither issued with a notice nor a hearing  prior to the decision being communicated in the letter which is a violation of  Article 47 of the Constitution and Fait Administrative Action Act.

10.    The Petitioner’s Managing Director deponed that it is unjust and unfair for the 1st, 5th and 7th Respondents to forcefully claim to resurvey the Petitioner’s parcel of land and create an access road without following the due procedure whereas there are access roads in the area serving the members of the public. It was  further his deposition that there have been threats issued by the 1st, 5th and 7th Respondents to the Petitioner with the aid of the 3rd Respondent and approval of the 4th Respondent who may at any time forcefully and in total disregard of the law trespass onto the Petitioner’s land, and urged the court to grant the conservatory orders as prayed.

11.    Wilfred Muchai,  filed a Replying Affidavit sworn on 27th June, 2025, where he deponed that he is a Deputy Director  of Survey attached to the office of the Director of Surveys,  Ruaraka under the  Ministry of Lands and Physical Planning.  He enumerated the process of preparation of  deed plans either by government or licensed  Surveyors, and in cases where a Deed Plan is prepared by a licensed Surveyor, he/she is required  to submit them to the Director of Surveys for signing, sealing and approval. Further that  a copy of the Deed Plan  is  always retained by the   Director of Surveys upon release of the Deed Plan to either  the licensed surveyor or the National Land Commission.

12.    It was his disposition that the survey records related to parcel of land  Number Rongai/Lengenet Block 6/11 was part of  the subdivision of LR No. 487 as contained in cadastral Survey Plan Number F/R No. 19/25 which gave rise to  LR Nos. 487/5 to LR. No. 487/31. That  parcel No. LR. No. 487/26 which was the resultant subdivision parcels of  LR No 487 was later subdivided into four subdivisions  to give rise to LR Nos 487/26/1 No. 487/26/2, No. 487/26/3, and  No. 487/26/4. That the parcel No. 487/26/4 was later subdivided into eight parcels , resulting in land parcel Nos. 487/173 – LR. No. 487/180 as well as a road parcel.

13.    Mr. Muchai further stated that the  subdivision  parcel LR No. 487/180 was later renamed  and renumbered as parcel No  Rongai/Lengenet Block 6/2 following a conversion  process from the land registration regime  under  The Registration of Titles Act ( Cap 281) to Land Registration Act Number 3 of 2012,  whereby  it was further subdivided into two parcels namely,  LR No Rongai/Lengenet Block 6/10 and 6/11 and a road parcel. The deponent gave a detailed background of the parcels of land as seen in the replying affidavit which I will not replicate at this juncture.

14.     According to Mr. Muchai, the subdivision of  LR No 487/26 was to create and provide for 100 feet- wide road  reserve  in  Subdivision  Surveys contained in Cadatral Survey Plans – F/R No. 12/100 and F/R No. 19/25. The 100 feet – wide road reserve was to serve as an access road to parcel Nos. LR No  487/26 to 487/31 and any subdivision  parcels  resulting from these  subject parcels.

15.      The Deponent further  stated that errors were discovered by the Director of Surveys regarding the subdivision of survey of parcel No. LR No Rongai/Lengenet Block contained in Cadastral Survey Plan Number F/R No 423/58- Survey Computation File Number 69027, whereby while M/S J.K. Kauga while undertaking the subdivision survey of parcel No LR No. Rongai/Lengenet Block 6/2 failed to exercise due diligence in carrying out the survey of the subject property regarding gathering all relevant information on previous surveys of the subject property and adjacent properties before conducting the survey, as required under the Survey Act, Cap 299, and Survey Regulations.

16.    He also deponed that the non- reference to the data, details and information of previous  survey records of the subject property and adjacent properties by M/s J K. Karuga – Licensed  Land Surveyor  has resulted to an erroneous subdivision  survey which has anned  land set aside for a 30.48 meter – wide public road reserve to be part of the Petitioner’s property and now comprising part of parcel No. Rongai/ Lengenet Block 6/11.

17.    It was Mr. Muchai’s disposition that  the Petitioner’s action of closing the road which previously existed since the year 1915 and served as an access road to parcel Nos LR Nos. 487/26 to  487/31  and any resultant subdivisions  has caused considerable inconvenience to the registered  owners of L R Nos 487/170 and LR No 487/171 which are resultant subdivisions of LR No. 487/27. That previously with the access road they would travel approximately 2 kilometers  while after the closure, they are forced to travel approximately 10.8 kilometers  through an alternative access route round the perimeter boundaries of the suit land and urged the court to disallow the Notice of Motion for conservatory orders.

18.    Hon Paul Chebor, the 5th Respondent  and a Member of Parliament  Rongai Constituency,  filed a Relpying Affidavit sworn on 8th August, 2025, where he  deponed that he has read the Replying affidavit of Wilfred Muchai the Deputy  Director of Surveys which he fully adopted the contents therein.

19.     He also stated that the residents of Rongai constituency  have a right of way through the suit property, a 30.48 meter wide   road reserve having been set aside for public use, remains public land and constitutes an overriding interest.   It was his disposition that the residents of Rongai have suffered grave inconvenience owing to the non- inclusion of the 30.48 meter-  wide public road reserve  in the subdivision exercise conducted by M/S.  J K Karuga  licensed  Land Surveyor and the subsequent action by the Applicant to close the access road.

20.    He further deponed that the Applicant is not entitled to the orders sought as the Applicant has grossly  misrepresented  facts  that the access road never existed and that the Respondents are attempting to create a non-existent access road. He  therefore stated that the  Applicant has not satisfied the principles for grant of a conservatory order hence the application should be dismissed with costs.

21.    Andrew Wambua filed a Supplementary Affidavit sworn on 7th July, 2025, and deponed that at all material times, prior and after acquisition of the property being RONGAI/LENGENET BLOCK 6/11, no access road has ever been shown or designated as alleged by the 7th Respondent on the Registry Index Maps (RIMs) and survey plan F/R No 423/58.  He  further deponed that the Petitioner followed the due process up to the approval and registration of the survey plan F/R No. 423/58. It was the Petitioner’s Managing Director’s deposition that the Respondent’s intention to cancel the survey plan and or trespass onto the Petitioner’s land is not only substantially unmerited but is also time barred.

22.    The second application is the Petitioner’s Notice of Motion application dated 8th September, 2025 which seeks the following orders:

a)    Spent

23.    The application is supported by the annexed affidavit of Andrew Wambua, the Petitioner’s Managing Director sworn on 8th September, 2025, where he  deponed that the Petition raises substantial weighty and complex questions of law under the Constitution based on the interpretation and application of the provisions of Section 31 & 33 of the Survey Act, Cap 299 and Articles 40 and 47 of the Constitution of Kenya on the powers of the Director of Survey to cancel a survey plan upon lapse of the statutory timelines.

24.    He  further deponed that  vide a letter dated 5th June 2025 the 1st Respondent   informed the  Surveyor who undertook the subdivision of the suit land that the 2016 survey had ignored the road area leading to a ballooned acreage  and that the Director of Survey intend to cancel the survey plan despite the fact that titles were issued following approved survey plan F/R No. 423/58 in 2016 which supersedes  the survey Plan F/R No. 381 of 2012.

25.    Mr Wambua stated that the Petition not only raises the questions of whether a right or fundamental freedom in the Bill of rights has been denied, violated or threatened but also raises the question on interpretation, and that the Petition meets the threshold for referral to the Chief Justice for empanelment of a Bench of an uneven number of not less than three  Judges.   He urged the court to allow the application.

26.    Hon Paul Chebor, the 5th Respondent filed a Replying Affidavit sworn on 24th September, 2025, and deponed that  the main issue for determination is whether the suit property  known as Rongai/Lengenet Block6/11 had an access road reserved  for public use hence there is nothing novel in the Petition requiring the empanelment of an uneven n umber of Judges to hear and determine the petition. He urged the court to dismiss the Application with costs.

27.    Counsel for the Petitioner filed submissions dated 10th July, 2025 and 8th October, 2025, and identified  two issues for determination on the application for conservatory orders,  On  the first issue as to whether  conservatory orders should  issue, counsel  relied on Article 23(3) of the Constitution , and  submitted that the court has jurisdiction to grant any appropriate relief including a conservatory order in instances of allegations of violation or infringement or threats  of violation or infringement of a right or fundamental freedom.

28.      Counsel relied on the cases of Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others [2015] eKLR,   and Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others (2014) eKLR where the court laid down the key principles applicable in determining whether to grant conservatory orders.

29.    On  whether the Applicant has established a prima facie case, counsel cited the case of  Kevin K. Mwiti & Others vs Kenya School of Law & Others [2015] eKLR,  and submitted that the supporting affidavit enumerated detailed imminent violation  of the Petitioner’s constitutional rights to property and fair administrative action, as  the Petitioner was not accorded a hearing prior to the decision communicated in a letter dated 5th June 2025.

30.    Further that the Petitioner is the registered owner of the suit land  and the alleged access road does not exist and that the Respondents do not deny that the fact that the Petitioner lawfully owns the  suit land.

31.      Mr Kipkoech submitted that unless the Respondents are restrained, the petitioner faces the threat of illegal cancellation of his title deed, which will amount to unconstitutional deprivation of its rights under Article 40(1) of the Constitution. Counsel further submitted that if the orders are not granted, the substratum of the petition will be lost and the Applicant will suffer prejudice as massive water the Respondents who have already deployed machinery from the National Youth Service would destroy works, a dam and green houses.

32.     According to counsel, the Petitioner is likely to suffer prejudice  which extends beyond the Petitioner to its employees and their dependents and relied on the cases of Bundid & another vs Ministry of East African Community (EAC), the Asals and Regional Development & 3 others [2024] KEHC 3479,  and   Republic V. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya  [2014] on the issue of public interest which must conform to the Constitution and the law as the rule of law is one of the national values. Counsel urged the court to allow the application with costs.

33.      On the  second application for empanelment of  an uneven bench  of not less than three Judges, counsel relied on Article 165 (4) of the Constitution which provides that any matter certified by the court as raising a substantial question of law under clause (3)  (b) or (d) shall be heard by an uneven number of judges , being not less than three assigned by the Chief Justice.

34.     Mr. Kipkoech submitted that the petition and the application raises substantial questions under the law  as Section 31(2) of the Survey Act limits the time within which the Director of Survey may require correction of a submitted plan to twelve months from the date the plan was sent to the 1st respondent for authentication . Further that Section 33 of  the Survey Act gives the Director of  Survey power to cancel authentication but prescribes the process and , critically requires notification to the registered  owner and other interested persons upon cancellation.

35.      It was counsel’s submission that the instant cases raise substantial questions of law and that the Respondents will suffer no prejudice if this matter is referred to the Chief Justice for empanelment  of  a bench of an uneven number of judges  not less than  three. Counsel relied on the cases of Peter Solomon Gichira vs The Attorney General and Another Petition No 313 of 2015, Community Advocacy Awareness Trust & Others vs The Attorney General & Others, High Court petition No. 243 of 2011 and Okiya Omtata & Another vs Anne Waiguru.

36.    Counsel for the Attorney General filed submissions dated 15th August, 2025,  and  opposed the application for conservatory orders. Counsel  relied on the replying affidavit sworn by Wilfred Muchai the Deputy Director of Survey attached to Ruaraka, and submitted that the prayer of conservatory orders under Article 23 of the Constitution of Kenya cannot issue  taking into account the obtaining factual  position and that the Petitioner has not met the threshold.

37.    Mr.  Allan  Kamau, reiterated the contents admitted by the   Petitioner and the enumerated facts in  Wilfred Muchai’s affidavit  explaining the background of the case and the suit parcels of land and submitted that  conservatory orders by their legal nature are not meant to undo a situation or the status of a subject matter and relied on the case of Judicial Service Commission vs Speaker of the National Assembly & Another [2013] eKLR,

38.     That  the Petitioner prays for restraining the Respondents from cancelling the relevant plans , but it is clear from the letter dated 5th  June 2025 that the cancellation had already been effected  as per paragraph 4  that:

39.     It was counsel’s submission that the action is deemed regular unless rebutted upon merit consideration of the petition, and cited the case of Chief Land Register & 4 others vs Nathan Tirop Koech & 4 others (2018) where the presumption of regularity was affirmed by the Court of Appeal.

40.    On the prayer for a prohibitory order, counsel submitted that the same cannot  issue  in respect to executed actions and in itself amounts to final orders which cannot  issue at an interlocutory stage, and relied on the cases of  Olive Mwihaki Mugenda & Another vs Okiya Omtata Okoiti & 4 Others [2016] eKLR, Cabinet Secretary, Ministry of Health vs Joseph Enock Aura & Others [2024] KECA 1195 (KLR).

41.     Counsel further submitted that the Application does not meet the test for the grant of conservatory orders as set out in the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR,  and urged the court to navigate the thin line by avoiding to delve onto the merits of the Petition  prematurely before hearing the parties on merit but at the same time having an overview of the substance  of the petition itself and whether a  prima facie case has been made to warrant the grant of conservatory orders and relied on the case of  Muslim for Human Rights (Milimani) & 2 others vs Attorney General & 2 others (2011) eKLR.

42.    According to counsel, the Application has a public interest consideration  and relied on the  Supreme Court case of Hermanus Phillipus Steyn vs Giovani Gnecchi- Ruscone, Supreme Court Application No 4 of 2012, National Super Alliance (NASA) Kenya vs Cabinet Secretary for Interior and Coordination of National Government & 3 others [2017] eKLR, where the court stated that the meaning of  matter of general public importance  may vary depending on the context.

43.     Counsel  submitted that the Petitioner’s application is premised on the development of commercial flower farm, green houses, a dam, irrigation systems, workers housing and administrative offices which establishment employs over 1000  workers , while the Respondents argue  a more public interest consideration premised on time factor, public reserved road and access road to other ensuing subdivisions.

44.    Counsel stated that superior courts in Kenya have affirmed in a number of cases that public interest takes precedence  over private interest and relied on the cases of East African Cables vs Public Procurement Complaints, Review and Appeals Board & Another [2007] eKLR, and  Cabinet Secretary Ministry of Health vs Aura & 13 others [2024] KECA 2 (KLR).

45.    Counsel also submitted on the  principle  of proportionality which requires the administrative authority , when exercising discretionary power to maintain a proper balance between any adverse effects which its decision may have on the rights , liberties , or interests of persons and the purpose which it pursues and cited the cases of  Attorney General vs Sumair Bansraj [1985] 38 WIR 286, R (Daly) vs Secretary of State For Home Department (2001) 2 AC 532 and Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 others [2016] KLR  and urged the court to dismiss the Application with costs.

46.     On the second application as to whether  the Petition raises any substantial point of law  bearing on public interest as required by Article 165 (3) (b) and (d), counsel submitted that the constitution of a bench is not a matter of right but one of necessity. Where there is a significant matter of public importance that raises novel constitutional issues or where  there are conflicting decisions of courts that require harmonization. Counsel relied on the case of Community Advocacy Awareness Trust & Others vs The Attorney General & Others, High Court petition No. 243 of 2011,  where the court stated that the Constitution of Kenya,  does not define  “substantial question of law, it is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief justice  to appoint an uneven number of judges not  being less than three to determine the matter.

47.    Mr. Kamau stated that the Petition does not  raise any substantial questions of law and equally does not have a significant bearing on public interest and relied on the cases  of  Kinyanjui V Attorney General & another, Omollo & 18 Others ( Interested parties)  ( Petition 74 of 2011) ( 2012) KEHC 5411 (27 September 2012) ( Ruling) where the court held that substantial question must take into account the provisions of the  constitution as a whole and need to dispense  justice without delay particularly   given a specific fact situation, and each case  must be considered on its merits by the judge certifying the matter.

48.     Counsel stated that the question of interpretation of Article 40 and 47 of the Constitution and  sections of the Survey Act are questions and issues that single judges of superior courts deal with within their daily discharge of their constitutional mandate under Article 165 (3) of the  Constitution. Counsel cited the cases of  Philomena Mbete Mwilu V Director of Public Prosecution, Director of Criminal Investigation, Chief Magistrates  Court ( Ant- Corruption) Nairobi, Attorney General V Stanley Muluvi Kiima ( 2018 ) KEHC 3432 (KLR).

49.     Lastly, it was counsel’s submissions that the Applicant has not demonstrated how the petition raises substantial questions of law, a question of immense jurisprudential moment, or a question of grave uncertainty of the law, which has not been covered in previous decisions by the court to warrant the empanelment of a bench. Counsel urged the court to dismiss the application with costs, as it is an abuse of court process.

50.    Counsel for the 5th Respondent filed submissions dated 11th August, 2025,   and 16th October, 2025. In the submissions dated 11th August, 2025, counsel identified the following issues for determination:

51.    On the first issue, counsel submitted that the application does not establish a prima-facie case with likelihood of success and relied on the cases of  Centre for Rights Education and Awareness and 7 others vs The Attorney General [HCCP No 16 of 2011] and Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others [2015] KEHC 2174 (KLR).

52.    Counsel submitted that  the application is based on mere allegations  and misrepresentation of facts as the question of ownership of the suit land is not is issue and therefore immaterial. The issue revolves around the assertion that the suit property has never had an access road cutting across it.

53.    The 5th Respondent submitted that the records presented by the applicant conveniently fail to show the public access road which has been in existence since 1915, and that the previously examined , approved and authenticated survey records reveal that a 30.48 meter –wide public road reserve  was set aside for  public use  on the suit property pursuant to cadastral Survey Plans F/R No. 19/25  No 51/5 and F/R No. 381/8.

54.    On the second issue, counsel submitted that the Petitioner has not demonstrated any real prejudice as a result of the alleged violations of rights. Counsel relied on the cases  of  Wilson  Kaberia Nkunja Vs The Magistrates and Judges Vetting Board & others Nairobi Constitutional Petition No. 154 of 2016 (2016) eKLR,  as cited in  Ochoiki vs Cabinet Secretary, Ministry of Health & 3 others [2025] KEHC 12484 (KLR).

55.    Counsel further submitted that the Applicant has alleged that its right to property is threatened by the respondents bid to construct an access road for the residents of Rongai constituency but on the contrary it is the residents of Rongai whose right of way  has been infringed

56.    On the third issue, counsel submitted that should the application be disallowed, the main petition will not be rendered nugatory. Counsel relied on the  cases of  Reliance Bank Ltd vs Norlake Investments Ltd [2002] 1 EA 27 and Kutoto & another vs Musalia Mudavadi, Prime Cabinet Secretary and Acting Cabinet Secretary for Interior and National Administration & another; Ilmoitanik Ilkitoip Set Elders & 3 others (Interested Parties) [2025] eKLR.

57.    On the fourth issue, counsel submitted that allowing this application will go against the principle of public interest, as the residents of Rongai constituency will continue to suffer inconvenience of using 10.8 km instead of 2 km to access the main Ravine-Kampi Ya Moto Road. Counsel relied on the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR.

58.    In respect of submissions dated 16th October, 2025, counsel identified the following issues for determination:

a)    Whether the Petition raises any substantial point of law bearing on public interest as required by Article 165 (3) (b) and (d)?

59.    Counsel submitted that the Petition does not raise any substantial point of law that transcends the particular circumstances of the present cases.  Further that  there are no uncertainties with the law on creation of access road on the alleged private property.

60.     It was counsel’s submission that the Applicant has not demonstrated  the substantial, weighty and complex issues regarding  Articles 40 and 47 of the constitution that requires empanelment of a bench to hear and determine the issue. Counsel relied on the cases of  Hermanus Phillipus Steyn vs Giovanni Gnechi-Ruscone [2013] eKLR, Okiya Omtatah Okoiti & Another vs Anne Waiguru- Cabinet Secretary, Devolution and Planning and 3 others [2017] eKLR, Harrison Kinyanjui vs Attorney General [2012] eKLR, Santosh Hazari vs Purushottam Tiwari [2001] 3SCC 179, Hopf vs Director of Survey & 2 others: Sakaja & 2 others (Interested Parties) (Suing on their own behalf and on behalf of 50 others) [2023] KEELC 22012 (KLR) and Karunu & another vs Kimemia & 3 others [2024] KEELC 3967 (KLR) and  urged the court to dismiss the application with costs.

61.    This ruling is in respect of two applications in the consolidated petitions, for  the grant of conservatory orders  and for referral to the Chief Justice for empanelment of a bench of an uneven number of judges not less than three to hear and determine this  petition on the ground that it raises  complex, substantial issues of law with a bearing on public interest.

62.      The issues therefore are:

a)    Whether the Applicant has established a prima facie case for the grant of conservatory orders,

63.    The principles for grant of conservatory orders are well settled as was held in the Supreme Court Case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:

64.    Similarly, in the case of Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board & others, (2016) eKLR the court summarized three main principles for consideration on whether to grant conservatory orders as follows:

65.    In the case of Board of Management of Uhuru Secondary School vs. City County Director of Education and 2 others (2015) eKLR, the Judge stated that for grant of conservatory orders the application must meet the following conditions:

66.    This Petition is in respect of an access road, which is contested by the Petitioner and the Respondents. Each party has a different version as to whether there existed of exist a public access road on the suit land.  The Petitioner asserts that there has never existed a public access road on the suit land while the respondents claim that  the Petitioner annexed a 30.48 meter –wide public road reserve which has been in existence since 1915. The Respondents have given an elaborate history and background of the acquisition and subdivisions with resultant subdivisions to the suit land which is in tandem with the Petitioners records which only differ at the point where the  Petitioner denies the existence of a public access road.

67.    I note  from the   Supporting Affidavit of the Managing Director of  the Petitioner , that the history he has given is in respect of the records he got from the original owner His Excellency Daniel Moi  (Deceased), where he narrated the process from acquisition , conversion, subdivision approvals, surrender of a ravine – Nakuru road,  and counter subdivisions.

68.     On the issue whether the Petitioner has established a prima facie case  for grant of a conservatory order, the Applicant must demonstrate that it has an arguable  case which raises a constitutional issue which is not frivolous and has a likelihood of success after the petition is  fully heard. The Applicant must also establish or show that there is real or imminent danger, if the order is not granted,   there may be violation of the rights alleged to be in danger of being infringed.

69.    In this instant Petition, what are the rights that are likely to be infringed by the Respondents, is there any real or imminent danger of the right to property or right to information being infringed? Mere generalization of alleged rights that are likely to be infringed without tangible demonstration of the imminent danger may not earn a person or an applicant conservatory orders.

70.    The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: -

71.    These vast lands have a long history, of subdivisions and it is the practice that when subdivisions are done, there are provisions for public utilities especially in big tracts of land like access roads. This is not to generalize as a norm but there has to be access.  The Applicant has not denied that the residents of Rongai have been using the access road for a long period of time,  until the access was closed, as deponed by the 5th  Respondent who stated that the residents now have to use a longer route of 10.8 Kilometres around the suit parcel’s boundary instead of 2 kilometres.

As much as the court is only looking at the application whether the Petitioner has met the threshold for grant of conservatory orders, public interest comes into play in favour of the Residents of Rongai who may have been affected by the closure of the purported public access road. The denial of grant of the conservatory orders will not render the petition nugatory or mute as the issues as to whether there existed an access road on the suit parcel of land, the issue of the erroneous inclusion of the 30.48 feet –wide meter public road reserve onto the suit parcel of land, whether the Director of Surveys has the power to cancel a survey plan after twelve months are still outstanding. This does not mean that the court has already dealt with the dispute.

72.    What prompted the Petitioner to come to court,   is it the issue of trespass or the purported cancellation of the survey plans, or the alleged imminent violation of the right to property. The court will grapple with these issues during the hearing of the Petition.

73.    In the case of   Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR.  the court stated as follows: -

74.     Lord Diplock   in American Cyanamid vs. Ethicon Limited case ( Supra) made it easy on the explanation of a prima facie case, that “ if  there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.   I will also adopt this description and end with a note that there is nothing is no substratum to preserve a conservatory order will do more harm than good.

75.    This is a matter that involves an access road and the best way to deal with this issue is to fast track the hearing of the main petition. I find that the application lacks merit and is therefore disallowed with each party bearing their own costs.

76.    On the second application on the  issue as to  whether the Applicant has met the threshold for  empanelment of an uneven number of judges  under Article 165 (4) of the Constitution of Kenya.

77.     Article 165(4) of the Constitution,  provides for the empanelment of  a bench as  follows:

79.     In the case  of  Martin Nyaga & others v Speaker County Assembly of Embu & 4 others & Amicus Curiae [2014] KEHC 7962 (KLR) where the court stated:

80.     What constitutes a substantial question of law is now well settled as seen in the case of  Sir Chuntilal Mehta and Sons Ltd Vs The Century Spinning and Manufacturing Co. Ltd 1962 AIR 1314,  where the Supreme Court of India defined the elements of a substantial question of law as follows;

80.    In the case of Steyn v Ruscone [2013] KESC 11 (KLR), the Supreme Court of Kenya pronounced the governing principles for purposes of certification under Article 163 (4) (b) some of which are relevant in the context of certification under Article 165 (4) of the Constitution of Kenya. The Court outlined the following principles:

81.     From the Supporting affidavit   sworn on 8th September 2025,  by Andrew  Wambua   in respect of the application for empanelment  of a bench of an uneven number of Judges, he lists the following questions which in his view raises substantial questions of law:

82.     Certification for empanelment of a bench is not a whimsical exercise, it is provided for under the Constitution. The fact that it is provided in the constitution is a solemn matter which must to taken seriously.  Not all matters  can qualify for certification as the current petition. This is an ordinary Petition which issues the court deals with on a daily basis on Article 40 and 47 of the Constitution. In an Environment and Land Court, the first port of call for violations or possible infringement of Article 40 on the right to property is the norm.

83.     The court deals with issues relating to survey procedures and summons the Director of Surveys to come and explain certain issues when required. The issue that the Petitioner is complaining of does not qualify as a novel constitutional question, or a substantial question of law that requires the empanelment of a bench. Allowing such an application would be absconding my duty as a  judge to hear and determine cases.

84.     Where such an application meets the threshold for empanelment, then the court would not hesitate to grant such orders. I therefore find that  the  issues above can be determined by a single judge as they do not reach the threshold for empanelment of an uneven number of judges as contemplated by Article 165 (4) of the Constitution of Kenya. I find that the Application dated 8th September, 2025 lacks merit and is therefore dismissed with costs.