An activist wants a church built in a school compound in Ruaraka constituency, Nairobi to be demolished.
In a petition lodged before the Environment and Land Court in Nairobi, Ezekiel Otieno has accused the managing board of Drive Inn Primary school of misusing school property by allowing the Ministry of Repentance and Holiness Mathare North church to construct and erect the church in the school compound.
Otieno faults the respondents for failing to involve the people through public participation and civic education programs before starting the construction of the church.
He now wants the court to order that the construction was done contrary to the law and was carried out without public participation by failing to engage the residents of Ruaraka area together with the parents and stakeholders of Drive Inn Primary school.
“An order be and hereby issued directing the demolition of the permanent structure that has been erected on the land owned by Drive Inn Primary School within 14 days after judgment,” reads the court papers.
In the petition, The ministry of Repentance and Holiness Mathare North church, the managing board of Drive inn Primary school, the sub county education Kasarani and county education Nairobi have been sued.
The activist who is also a public litigator alleges that the church has violated the rights and freedom of the learners who go to school at Drive Inn.
Further, he says he received no response from the respondents when he tried to pursue information on how such construction was carried out without any public participation or due procedure considering the school sits on public public land.
“The respondents intentionally failed to involve the people through a public participation and civic education programs thereby evading accountability, transparency and working on the subject properties in blatant violation of the basic national values and principles of governance as enshrined in Article 10 (2) of the Constitution of Kenya.”
The court heard that the 21 days in which the information is supposed to be given lapsed before the information was given and that it has not been given to date.
Otieno alleges that the unlawful, unfair and unreasonable act and/or commission of the respondents will occasion the general public and specifically the children who attend the school irreparable loss.
“A declaration that the failure by the 2 Respondent to provide information sought under Article 35(1)(a) on the basis of the Petitioner’s request dated 29th January, 2024 is a violation of Article 10 of the Constitution specifically the values of the rule of law, participations of the people, human rights good governance transparency and accountability,” reeds part of the court documents.
Otieno says, “legitimate expectation is based not only on ensuring that legitimate expectation by the parties are not thwarted but on a higher public interest beneficial to all., which is the value or the need of holding authorities to promises and practices that have made and acted on and by so doing upholding public administration.”
Furthermore, he alleges that legitimate expectation arises in this instance where the petitioner and other members of the public expect the respondents to be accountable and transparent and justify their actions whenever required to do so by members of the public, and usurpation.
Judge Joseph Oguttu Mboya has since certified the matter as urgent.
Further he has directed Otieno to serve the respondents with the application.
Subsequently, he ordered the respondents to file and serve their responses within seven days from the date of service.
“In the meantime no Interim Order(s) commend themselves unto the court in so far as the first respondent is stated to be in occupation of a portion of the suit property and hence the same (1st Respondent) deserves to be heard beforehand,” ruled Mboya.
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