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ELCDismissedApplication dated 11th March 2015 in Constitutional Petition (Kilifi/Jimba/64 matter)· [2015] KEELC 134 (KLR)

Ellen Ndemba Iha v Charity Ngilu, Cabinet Secretary Ministry of Lands, Housing & Urban Development & 14 others [2015] KEELC 134 (KLR)

Environment and Land Court
23 October 2015
OAO. A. Angote
1,051 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that after refusing conservatory orders, only the Court of Appeal can protect your property pending an appeal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (O. A. Angote J) on the Petitioner's Notice of Motion dated 11th March 2015 seeking an injunction restraining the Respondents from disposing of, alienating, mortgaging, charging or interfering with plot Kilifi/Jimba/64, which had been subdivided into eleven portions, pending the hearing of an appeal against a ruling dismissing her application for conservatory orders. The Petitioner argued that the appeal would be rendered nugatory and she would suffer substantial loss without the injunction. The 5th Respondent opposed the application, contending that the court was functus officio, that the Petitioner had no protectable proprietary rights, and that no security had been offered. The court held that Constitutional Petitions are governed by the Mutunga Rules and not the Civil Procedure Rules, so Order 42 Rule 6 does not apply. Relying on the Supreme Court's decision in Gitarau Peter Munya v Dickson Mwenda Kithinji, the court distinguished conservatory orders from injunctions and held that the Mutunga Rules do not empower the trial court to issue injunctive or conservatory orders pending appeal after dismissing a conservatory order application; there was no positive order capable of being stayed, and entertaining the application would amount to the court sitting on its own appeal. Only the Court of Appeal could grant the relief sought. The application was dismissed with costs on 23rd October 2015.

Key legal issues

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01

Jurisdiction to grant injunction pending appeal after dismissing a conservatory order application

Holding

The court has no such jurisdiction; only the Court of Appeal can grant the relief sought

Reasoning

The Mutunga Rules govern interlocutory applications in Constitutional Petitions and do not provide for the trial court to issue injunctive or conservatory orders pending appeal after dismissing an application for conservatory orders. Granting such an injunction would be an affront to the Mutunga Rules. Further, since the dismissed application sought conservatory orders, there is no positive order capable of being stayed. Considering these matters would amount to the court sitting on its own appeal.

p. 3
02

Applicable procedural law in Constitutional Petitions

Holding

The Mutunga Rules, and not the Civil Procedure Rules, govern applications in Constitutional Petitions

Reasoning

The court held that the law applicable to Constitutional Petitions is the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010 ('Mutunga Rules'), under which applications for conservatory orders are governed by Rule 23, and stay applications by Rule 32(3). The provisions of Order 42 Rule 6 of the Civil Procedure Rules relied upon by the parties do not apply.

p. 3

Legal principles established

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  • An application for a conservatory order is not the same as an application for injunctive orders; the principles applicable to injunctions cannot be applied to conservatory order applications
  • Constitutional Petitions are governed by the Mutunga Rules, not the Civil Procedure Rules; Order 42 Rule 6 is inapplicable to applications in such petitions

Court orders

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  1. 1.The Petitioner's Application dated 11th March 2015 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010 (Mutunga Rules)Rule 23; Rule 32(3)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Gitarau Peter Munya -vs- Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010 (Mutunga Rules), Rule 23 and Rule 32(3)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ellen Ndemba Iha v Charity Ngilu, Cabinet Secretary Ministry of Lands, Housing & Urban Development & 14 others [2015] KEELC 134 (KLR)", Case Analysis (2015). Application dated 11th March 2015 in Constitutional Petition (Kilifi/Jimba/64 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/134/eng@2015-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.