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ELCDismissedPetition dated 10th October 2016 (Nairobi)· [2017] KEELC 1879 (KLR)

Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 6 others [2017] KEELC 1879 (KLR)

Environment and Land Court
15 September 2017
SOS. Okong'o
3,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a group's bid to stop land subdivision, ruling you cannot get a court order to undo something already done.

What this practically means

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Executive summary

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The petitioners, plot owners at Kariobangi South Jua Kali Sector VI allocated plots on 6th November 2002 following a Ministry of Local Government directive, moved the court by Notice of Motion dated 10th October 2016 seeking conservatory orders restraining the respondents from sub-dividing, alienating or downsizing L.R No. 12062/1245 and compelling production of the Part Development Plan and list of allottees. They alleged violation of Articles 10, 40, 73, 74, 75 and 76 through illegal downsizing of plots, new letters of allotment and enhanced charges, founded on legitimate expectation, property rights and fair administrative action. The 1st, 2nd and 4th respondents opposed, explaining that the land was allocated to the interested party following a presidential directive, litigation in Nairobi HCCC No. 2303 of 1998, and a consent order of 1st November 2012 directing subdivision to settle the interested party's members; the downsizing implemented that consent. The interested party (joined 28th November 2016) said the downsizing accommodated additional claimants. Applying Rule 23 and the Gatirau Peter Munya test, the court held the petitioners had no prima facie case: they were members of the interested party, bound by its non-discriminatory decision, and the respondents were complying with a court consent order which the petitioners should have challenged directly. Further, the subdivision was complete and an injunction cannot restrain what has already occurred, and the orders would not serve the public interest. The application was dismissed with costs in the cause, liberty retained to claim damages at the hearing if violations are proved.

Key legal issues

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01

Prima facie case for conservatory orders

Holding

The petitioners failed to establish a prima facie violation of constitutional rights; the subdivision and allocation complied with a consent order in the 1998 suit, and consultation with the interested party's officials sufficed

Reasoning

The court found ample evidence that the suit property was destined for the interested party's members via a presidential directive, culminating in a consent order of 1st November 2012. The petitioners were members of the interested party and stood to benefit. The downsizing of plots was a good-faith decision to accommodate competing claimants, not discrimination or bad faith. Aggrieved parties should have moved the court that made the consent order.

p. 5
02

Public interest and futility of the conservatory order

Holding

The conservatory orders would not have issued even had a case been established, since subdivision was complete and granting the orders would not serve the public interest

Reasoning

The court held that an injunction cannot restrain what has already taken place: the subdivision was finished and allotment letters had been issued. Interfering with current plot sizes would reignite conflict among members and displace co-opted members, contrary to public interest. The petitioners retain the liberty to seek damages at the hearing if violations are established.

p. 6

Legal principles established

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  • An applicant for a conservatory or interim order under Rule 23 of the Mutunga Rules must demonstrate a prima facie case, likelihood of prejudice absent the order, and that it would be in the public interest to grant the order
  • An injunction cannot issue to restrain an act that has already been completed
  • Members are bound by the lawful, non-discriminatory decision of their society's officials in respect of allocation of land

Court orders

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  1. 1.The petitioners' Notice of Motion dated 10th October 2016 is dismissed
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Articles 19, 20, 22, 23, 24, 25, 40, 47 and 50 of the Constitution; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 23

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, "Kariobangi South Land Owners Welfare Group & 3 others v Nairobi City County & 6 others [2017] KEELC 1879 (KLR)", Case Analysis (2017). Petition dated 10th October 2016 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1879/eng@2017-09-15

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