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ELCDismissedNotice of motion dated 15th October, 2015 (suit over land parcel No. Nyeri/Municipality Block/1105)· [2017] KEELC 69 (KLR)

Ethics and Anti-Corruption Commission v John Peter Kamau Ruhangi & 7 others [2017] KEELC 69 (KLR)

Environment and Land Court
30 May 2017
1,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyeri refused to freeze land dealings sought by Kenya's anti-corruption agency, because the freeze would clash with an earlier High Court order.

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 Nyeri (L N Waithaka, J) on a notice of motion dated 15th October 2015 by the Ethics and Anti-Corruption Commission, the plaintiff/applicant in a suit for recovery of land parcel No. Nyeri/Municipality Block/1105, allegedly illegally alienated from public to private status. The applicant sought a temporary order of inhibition under Section 68(1) of the Land Registration Act, 2012 and a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules restraining the defendants, including Ecobank Kenya Limited, from dealing with the suit property pending hearing of the suit. The respondents opposed, contending that the application was brought in bad faith to circumvent orders issued in Nairobi Judicial Review Miscellaneous Application No. 244 of 2014, in which certiorari had quashed a 2012 restriction registered by the Land Registrar and mandamus had been issued compelling the Registrar to consider registering a discharge of charge and transfer to Mathew Ndoga Kabau. The court framed a single issue: whether the applicant had made out a case for the orders sought. It held that granting the orders would render the judicial review mandamus nugatory, and further that refusal would not prejudice the applicant since its case turns on past events. The court therefore found the motion lacking in merit and dismissed it with costs to the respondents on 30th May 2017.

Key legal issues

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01

Whether the interim orders sought would circumvent the judicial review orders in Nairobi Judicial Review Miscellaneous Application No. 244 of 2014

Holding

They would, and on that ground alone the motion could not stand

Reasoning

The court examined the orders issued in the judicial review proceedings, which quashed the 2012 restriction and directed the Registrar to consider registering a discharge of charge and transfer to Mathew Ndoga Kabau. It agreed with the respondents that inhibition or injunction orders over the same parcel would nullify that mandamus, and declined to make orders that would contradict a subsisting High Court order.

p. 2
02

Whether the applicant demonstrated a case for the discretionary interim orders

Holding

It did not; dismissal was inevitable

Reasoning

Although acknowledging the public interest in prohibiting dealings pending the recovery suit, the court found no prejudice to the applicant in refusing the orders because its claim concerns past alienation of the suit property. Without demonstrated prejudice or a risk of rendering the suit nugatory, the application was found lacking in merit and dismissed with costs.

p. 3

Legal principles established

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  • An interlocutory injunction or inhibition will be refused where the applicant will suffer no prejudice if denied, as where its case turns on past transactions that can be adjudicated at the hearing
  • Interim preservation orders cannot be granted where they would render operative orders in prior judicial review proceedings nugatory

Court orders

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  1. 1.The notice of motion dated 15th October, 2015 was dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Land Registration Act, 2012Section 68(1)
  • Civil Procedure RulesOrder 40 Rule 1
  • Constitution of Kenya, 2010Article 47(2)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; relief sought under Section 68(1) of the Land Registration Act, 2012 and Order 40 Rule 1 of the Civil Procedure Rules

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, "Ethics and Anti-Corruption Commission v John Peter Kamau Ruhangi & 7 others [2017] KEELC 69 (KLR)", Case Analysis (2017). Notice of motion dated 15th October, 2015 (suit over land parcel No. Nyeri/Municipality Block/1105). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/69/eng@2017-05-30

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