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ELCDismissedNot stated in the judgment (Petition with Notice of Motion under Rules 12, 19, 23(1), 24, 20 and 21 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013)· [2016] KEELC 1248 (KLR)

Sudi Hamisi v Matano Juma Mbaruku & 2 others [2016] KEELC 1248 (KLR)

Environment and Land Court (Mombasa)
13 July 2016
712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to protect a land occupier because his own documents showed someone else as the registered owner.

What this practically means

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Executive summary

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The petitioner, Sudi Hamisi, moved the Court by Notice of Motion under Rules 12, 19, 23(1), 24, 20 and 21 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Articles 22(4) and 23(3)(b), (c) of the Constitution, seeking a conservatory order restraining the respondents from alienating, transferring or interfering with land parcel No. Kwale/Mkongani/B'/295 measuring 17.55 Ha pending hearing and determination of the petition, with costs. The application was supported by his affidavit annexing an adjudication letter, a certificate of official search, a chief's letter dated 7.1.76, photographs, a green card, and a ruling and decree in ELC 66 of 2014. The 1st Respondent opposed, pointing out that the official search showed him as the registered owner free from encumbrances and that the applicant had annexed no evidence of ownership. The court held that an applicant for conservatory orders must establish a prima facie case with a probability of success. The applicant's documents failed to link plot No. 375 in Mkongani B adjudication section to the suit parcel; the search certificate and register showed the 1st Respondent as owner, and no fraud in the registration was demonstrated. The decree in ELC 66 of 2014 had merely struck out the applicant's suit as time barred and contained no eviction orders, and no attempts to evict the applicant were evidenced. Finding no merit in the application, the court dismissed it with costs to the 1st Respondent on 13 July 2016 at Mombasa (A. Omollo, J).

Key legal issues

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01

Prima facie case for conservatory orders

Holding

The applicant failed to establish a prima facie case; his own annexures (adjudication letter for plot No. 375 Mkongani B, certificate of search and certified register) did not link him to the suit parcel and showed the 1st Respondent as owner

Reasoning

The applicant annexed an adjudication letter showing plot No. 375 in Mkongani B adjudication section in his name, but produced no evidence linking that plot to the suit parcel Kwale/Mkongani/B'/295. The certificate of official search and certified copy of the register showed the 1st Respondent as owner. The chief's letter of 7.1.76 identified no parcel number. Registration had not been shown to be fraudulent.

p. 2
02

Irreparable loss / threat of eviction

Holding

No attempt by the 1st Respondent to evict the applicant was demonstrated on the face of the application or the supporting affidavit

Reasoning

The applicant deposed that he lives on the suit land and feared eviction, but the decree in ELC 66 of 2014 merely struck out his suit as time barred and gave no eviction orders. No attempts at eviction were stated in the grounds or affidavit, so no irreparable harm was demonstrated to justify the conservatory relief sought.

p. 2

Legal principles established

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  • An applicant for a conservatory order must lay a basis of having a prima facie case with a probability of success

Court orders

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  1. 1.The application (Notice of Motion seeking a conservatory order in respect of land parcel No. Kwale/Mkongani/B'/295) is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 22(4), 23(3)(b), (c)
  • Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 12, 19, 23(1), 24, 20 and 21
Jurisdiction invoked
Articles 22(4) and 23(3)(b), (c) of the Constitution, read with Rules 12, 19, 23(1), 24, 20 and 21 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Sudi Hamisi v Matano Juma Mbaruku & 2 others [2016] KEELC 1248 (KLR)", Case Analysis (2016). Not stated in the judgment (Petition with Notice of Motion under Rules 12, 19, 23(1), 24, 20 and 21 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1248/eng@2016-07-13

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