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ELCAllowedNotice of Motion dated 10th April 2017 (in Petition dated 4th April 2017)· [2017] KEELC 2458 (KLR)

Kipkoech Arap Sang & 4 others v Principal Secretary, Ministry of Lands and Physical Planning & 3 others [2017] KEELC 2458 (KLR)

Environment and Land Court
13 June 2017
DOD. O. Ohungo
945 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked title deed processing on Cheboror Farm land for six months, protecting resettled families' claims pending a full hearing.

What this practically means

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Executive summary

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This is a ruling on the petitioners' Notice of Motion dated 10th April 2017, brought under Rules 19 and 23(1) & (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking conservatory orders restraining the respondents from processing and issuing title deeds for parcels comprised in LR No. 24644: Northern Tendiret Cheboror, also known as Cheboror Farm, pending the hearing of the petition. The application was supported by the affidavit of Kipkoech Arap Sang, who deposed that in the 1980s the government evicted the petitioners from various forests and excised part of North Tinderet Forest to create Cheboror Farm to resettle them; they were allocated parcels and issued allotment letters, but the government is now processing title deeds excluding the parcels they occupy, threatening their property rights. The respondents were served but neither filed a response nor attended the inter partes hearing; the application was heard unopposed. The court found that an applicant for conservatory orders must establish a prima facie case with a probability of success and that public interest must be considered. With the respondents' case unchallenged, the applicants established a prima facie case on a balance of probabilities. On public interest, though non-party beneficiaries might be affected by the titling process, the court mitigated potential adverse effects by limiting the orders to six months and directing expedited hearing of the petition. The court granted the conservatory order sought, to remain in force for not more than six months, and awarded costs to the petitioners.

Key legal issues

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01

Whether a prima facie case was established for conservatory orders

Holding

The applicants established a prima facie case on a balance of probabilities, the respondents having neither responded to nor opposed the application despite service

Reasoning

The respondents were served but filed no response and did not attend the inter partes hearing, leaving the applicants' case unchallenged. On the uncontroverted evidence that the petitioners were allocated the Cheboror Farm parcels and face imminent titling in exclusion of their interests, the court found a prima facie case with a probability of success on a balance of probabilities.

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02

Whether public interest militated against the orders

Holding

The court mitigated possible adverse effects on non-party beneficiaries by limiting the orders to six months and fast-tracking the petition

Reasoning

No evidence was placed before the court on how the orders would affect public interest. However, since title deeds were being processed, non-party beneficiaries could be affected. The court chose to balance this by granting the conservatory order for a limited period of not more than six months and giving directions for expedited hearing of the petition.

p. 3

Legal principles established

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  • In a conservatory order application, the applicant must establish a prima facie case with a probability of success and the court must also consider public interest

Court orders

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  1. 1.A conservatory order restraining the Respondents, their agents, servants, employees or otherwise howsoever from processing and issuing title deeds for parcels of land comprised in LR NO 24644: Northern Tendiret Cheboror otherwise also known as Cheboror Farm
  2. 2.The conservatory order to be in force for a period of not more than six months from the date of the ruling, unless otherwise ordered by the court
  3. 3.Directions for expedited disposal of the petition
  4. 4.Costs to the petitioners

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 19 and 23(1) & (2)
  • Constitution of KenyaArticles 27, 28, 29, 40, 43 and 47
Jurisdiction invoked
Rules 19 and 23(1) & (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Kipkoech Arap Sang & 4 others v Principal Secretary, Ministry of Lands and Physical Planning & 3 others [2017] KEELC 2458 (KLR)", Case Analysis (2017). Notice of Motion dated 10th April 2017 (in Petition dated 4th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2458/eng@2017-06-13

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