Sudi Hamisi v Matano Juma Mbaruku & 2 others [2016] KEELC 1248 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for conservatory orders
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
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.
Irreparable loss / threat of eviction
No attempt by the 1st Respondent to evict the applicant was demonstrated on the face of the application or the supporting affidavit
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.
Legal principles established
#- An applicant for a conservatory order must lay a basis of having a prima facie case with a probability of success
Court orders
#- 1.The application (Notice of Motion seeking a conservatory order in respect of land parcel No. Kwale/Mkongani/B'/295) is dismissed
- 2.Costs of the application awarded to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.