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ELCDismissedPetition filed 15/9/2016 (Kitale)· [2017] KEELC 2147 (KLR)

Peter Njogu Karanu & 4 others v Nyakinyua Mugumo Trees Co.Ltd & 2 others [2017] KEELC 2147 (KLR)

Environment and Land Court of Kenya
28 July 2017
MNMwangi Njoroge
2,470 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 dismissed shareholders' bid to halt land titling because they brought allegations, not evidence, and never first requested the documents they wanted.

What this practically means

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Executive summary

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The petitioners, five shareholders in the 1st respondent company, filed a petition on 15/9/2016 seeking declarations that a parallel survey of LR. 1803 was unlawful, that the survey passed and registered on 16th April 2014 and the resulting indentures were valid, an injunction against any parallel survey or title issuance, and an order of judicial review quashing the Chief Land Registrar's decision. They also moved by Notice of Motion for conservatory orders halting the alleged parallel titling process and for an order compelling the respondents to furnish survey maps, Land Control Board consent and the area list. The respondents opposed on technical grounds, asserting that titles under the National Titling Programme had already been issued, that they had no legitimate control over the issuance of titles, and that the petitioners had shown no violation of any right. The court found that the dispute concerned the same land as ELC Kitale No. 103 of 2015 and Eldoret HCCC No. 98 of 1987, on whose judgment both parties relied. It held there was insufficient evidence of a prima facie case or prejudice to warrant conservatory orders; that no prior request for information had been made as required before claiming a right-to-information violation; and that the five petitioners lacked demonstrated authority to act for the wider shareholders. The court also observed that the 27-year delay in issuing titles, partly caused by company leadership wrangles, could not properly be prolonged on unsupported allegations. The Notice of Motion dated 13th September 2016 was dismissed with costs to the applicants.

Key legal issues

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01

Evidentiary threshold for conservatory orders

Holding

The application failed for want of evidence of a prima facie case or of prejudice to the applicants

Reasoning

The court held that a petitioner's case rests on the evidence brought to court. The applicants' supporting affidavit was scant on who was dispossessed, who was relocated from 40-year homes, or that former directors were getting excess land. Conservatory orders can only issue on sound evidence of possible breach of rights, not unsupported allegations.

p. 5
02

Precondition to a claim for information/documents

Holding

Prayer (c) failed because no prior request for the documents was made to the respondents

Reasoning

Applying its prior decision in Kituo Cha Sheria, the court held that a party must first request information under Article 35(1) and be denied before approaching the court; the request cannot be embedded in the same petition alleging breach.

p. 4
03

Authority to act for other shareholders

Holding

The five petitioners showed no authorisation to represent the numerous other shareholders, and the deponent showed no authority to swear the supporting affidavit on their behalf

Reasoning

The court noted there was no evidence that the five petitioners were authorised to act for the other shareholders not party to the petition, undermining their standing to halt a title issuance process affecting all shareholders.

p. 5
04

Delay and self-inflicted denial of rights

Holding

The 27-year delay in delivering titles, partly due to leadership wrangles, weighed against halting the titling exercise at an interlocutory stage

Reasoning

The court criticised land buying firms that have failed to deliver titles to aged shareholders, noted the prejudice of delayed securitisation of land assets, and held it improper for a shareholder without concrete evidence of wrongdoing to delay title issuance further.

p. 5

Legal principles established

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  • A petitioner seeking conservatory orders must bring sufficient evidence demonstrating a prima facie case; unsupported allegations will not suffice
  • A party seeking information must first request it from the respondent before alleging violation of the right to information; the request cannot be made for the first time in the petition

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 13th September, 2016
  2. 2.The applicants to bear the costs of the motion

Authorities

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Legislation

  • Registration of Titles ActRepealed
  • Constitution of KenyaArticle 35(1)

Cases cited (3)

  • Kituo Cha Sheria & Charles Kioko Muthusi v The Central Bank of Kenya and Others
    Nairobi Milimani Law Courts Petition No. 191 of 2011 (Consolidated With Petition No. 292 of 2011)
  • Nairobi Law Monthly
  • Famy Care
Jurisdiction invoked
Constitution of Kenya, 2010 (petition alleging violation of fundamental rights and freedoms; Article 35(1) right to information discussed)

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, "Peter Njogu Karanu & 4 others v Nyakinyua Mugumo Trees Co.Ltd & 2 others [2017] KEELC 2147 (KLR)", Case Analysis (2017). Petition filed 15/9/2016 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2147/eng@2017-07-28

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