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ELCDismissedNot stated in the judgment (notice of motion dated 15th October, 2015)· [2017] KEELC 186 (KLR)

Ethics and Anti-Corruption Commission v John Peter Kamau Ruhangi & 7 others [2017] KEELC 186 (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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Kenya's EACC failed to freeze a Nyeri land parcel because courts won't grant orders that contradict existing judicial review decisions.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission (applicant/plaintiff) moved the court by notice of motion dated 15th October 2015 seeking a temporary order of inhibition under Section 68(1) of the Land Registration Act and a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules over land parcel No. Nyeri/Municipality Block/1105, contending that the property had been illegally alienated from public to private status and that interim orders were needed to preserve it pending a suit for recovery. The application was supported by the affidavit of the applicant's investigator, Faith Ngethe. The respondents opposed, arguing the application was brought in bad faith to circumvent orders issued in Nairobi Judicial Review Miscellaneous Application No. 244 of 2014, in which the 3rd respondent, Ecobank Kenya Limited, had obtained certiorari quashing a restriction registered on the property and mandamus directing the Chief Land Registrar to consider registering a discharge of charge and transfer to Mathew Ndoga Kabau. Framing the sole issue as whether the applicant had made out a case for the orders, the court agreed that granting them would render the mandamus order nugatory. On merits, it held that refusal would not render the recovery suit nugatory because the plaintiff's case turns on past events and no prejudice would be suffered. The motion was dismissed with costs to the respondents on 30th May 2017.

Key legal issues

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01

Whether the applicant established a case for temporary inhibition and injunction orders

Holding

The application was dismissed as lacking in merit; the orders would circumvent the judicial review orders and refusal would cause the applicant no prejudice

Reasoning

The court noted that prior orders in Nairobi Judicial Review Miscellaneous Application No. 244 of 2014 quashed the restriction registered on the suit property and directed the Chief Land Registrar to consider the 3rd respondent's application to register a discharge of charge and transfer. Granting the inhibition and injunction sought would render the mandamus order nugatory. On merits, the applicant's recovery suit turns on past alienation, so no prejudice would arise from denial of interim orders.

p. 3

Legal principles established

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  • Interlocutory preservation orders will be refused where they would render nugatory existing orders issued in prior judicial review proceedings concerning the same property
  • Where a plaintiff's case turns on past events, refusal of interim preservation orders causes no prejudice since subsequent dealings do not defeat the claim

Court orders

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  1. 1.The notice of motion dated 15th October, 2015 was dismissed with costs to the respondents

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 40 Rule 1
  • Constitution of KenyaArticle 47(2)
Jurisdiction invoked
Original civil jurisdiction; application 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 186 (KLR)", Case Analysis (2017). Not stated in the judgment (notice of motion dated 15th October, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/186/eng@2017-05-30

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