Chorlim Multipurpose Cooperative Society Limited & 3 others v Attorney General & 9 others [2018] KEELC 887 (KLR)
The bottom line
#Once a Kenyan court dismisses your land petition, it cannot later grant you orders to stay on the land pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether conservatory orders can issue after dismissal/striking out of the petition
No. Conservatory orders maintain a state of affairs pending final adjudication; once the petition is struck out the court is functus officio and issuing such orders would amount to reviving the petition and perpetuating illegal occupation of gazetted forest land.
The court had twice adjudicated the issues relating to the suit land and found the petitioners had no proprietary rights, the land being gazetted forest land not available for allocation. Issuing a conservatory order post-strike-out would, in effect, revive the dead petition and perpetuate occupation of the forest, contrary to good practice and the public interest in conservation and reforestation.
Whether maintenance of status quo was available
No, because the applicants had already been evicted and had not rebutted the respondents' affidavit evidence to that effect.
The 3rd respondent's ecosystems conservator deponed that the applicants had already been removed from the forest following a notice dated 13/7/2018, making the application moot and overtaken by events. The applicants filed no submissions and did not respond to those averments. An order of status quo preserving a position that no longer exists would be an order in vain.
Whether the balance of convenience and public interest favoured the applicants
No. The public benefit of forest conservation and reforestation outweighed any possible private loss, and no loss or damage on denial of the orders was alleged or proved.
The court weighed the applicants' claimed substantial loss (about 200 families facing eviction) against the public interest in conserving the gazetted forest. The alleged 1997 allocation had already been successfully challenged in concluded proceedings, and any loss was, at the post-judgment stage, counterbalanced by the public benefit of conservation and environmental restoration.
Legal principles established
#- A conservatory order is issued during the pendency of a petition, not after it has been dismissed or struck out
- After dismissing a petition, the court becomes functus officio and cannot issue consequential conservatory or status quo orders
- Courts should not issue orders in vain where the state of affairs they seek to preserve no longer exists
- At a post-judgment stage, the public benefit of forest conservation counterbalances any private loss alleged
Court orders
#- 1.The application dated 2nd August, 2018 is dismissed
- 2.Costs of the application awarded to the 3rd and 4th respondents only
- On appeal from
- Environment and Land Court (Kitale)
- Kitale ELC Pet. No. 4 of 2017
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court under the Mutunga Rules; application brought ostensibly pending an intended appeal to the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chorlim Multipurpose Cooperative Society Limited & 3 others v Attorney General & 9 others [2018] KEELC 887 (KLR)", Case Analysis (2018). Kitale ELC Pet. No. 4 of 2017 (Notice of Motion dated 2nd August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/887/eng@2018-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.