Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 5 others; Kariobangi South Jua Kali Society (Interested Party) (Civil Appeal 392 of 2017) [2021] KECA 183 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect land allottees, ruling that constitutional conservatory orders serve public interest, not private land disputes.
What this practically means
#Executive summary
#Key legal issues
#Standard for appellate interference with discretionary decisions
The Court of Appeal will not interfere with a discretionary decision merely because it would have weighed the factors differently; interference requires misdirection in law, misapprehension of facts, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong decision.
The court adopted the classic statement of principle from United India Insurance v. East African Underwriters, reiterated in Ainu Shamsi Hauliers v. Moses Sakwa. It held it was not within its powers to substitute its discretion for that of the trial court, and that it must be shown the decision was wrong or perverse before interference.
Nature and principles governing conservatory orders
Conservatory orders granted under Article 23 of the Constitution are public-law remedies in rem, granted on the inherent merit of a case bearing in mind the public interest, and require a prima facie case with likelihood of success, likely prejudice, and public interest.
The court distinguished constitutional conservatory orders from ordinary interlocutory injunctions, relying on Alfred N. Mutua v. EACC and the Supreme Court's decision in Gatirau Peter Munya v. Dickson Mwenda Kithinji. Because the application was brought under Article 23(b) and (c), the court was exercising constitutional discretion, and the three conditions of prima facie case, prejudice and public interest had to be satisfied.
Whether the appellants established a basis for the grant of conservatory orders
No: the trial court addressed all relevant factors and correctly concluded that the dispute concerned private interests disguised as a constitutional issue, with no public interest to be served by the orders.
The court found no indication that the trial court overlooked essential material or failed to address the prima facie case, prejudice and public interest factors. It agreed that the appellants were pursuing private interests in a dispute with no public connotation, and that the trial court was correct to find no grounds for conservatory orders.
Legal principles established
#- An appellate court will only interfere with a discretionary decision if the judge misdirected himself in law, misapprehended the facts, took account of irrelevant matters, failed to take account of relevant considerations, or the decision is plainly wrong.
- Conservatory orders under the Constitution are remedies in rem, granted on the inherent merit of a case bearing in mind the public interest, not private remedies between individuals.
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs
- On appeal from
- Environment and Land Court (High Court)
- ELC Petition No. 1337 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of the Environment and Land Court; application under Article 23(b) and (c) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 5 others; Kariobangi South Jua Kali Society (Interested Party) (Civil Appeal 392 of 2017) [2021] KECA 183 (KLR)", Case Analysis (2021). Civil Appeal No 392 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/183/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.