Likizo Limited v Nasib Kashuru Mumbo & 4 others [2018] KEELC 1124 (KLR)
The bottom line
#A Malindi court temporarily protected a private landowner's title from a National Land Commission transfer order, showing Kenyan property owners can urgently freeze such decisions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner established a prima facie case with a likelihood of success
Yes. The Petition raised arguable constitutional issues, including whether the suit property was private land outside the 2nd Respondent's mandate, whether the review under Section 14 of the National Land Commission Act was time-barred, and whether the 2nd Respondent could make a determination rather than merely recommend redress.
The court noted the Petitioner's contention that the land was private and thus not available for allocation, that the Section 14 review window of five years lapsed on 2nd May 2017 before the July 2017 Gazette Notice, and that the 2nd Respondent could only recommend redress. These contentions, though unproven at that stage, were arguable and not frivolous, satisfying the prima facie threshold.
Whether a real danger of constitutional violation existed warranting conservatory orders
Yes. The Petitioner's property rights under Article 40 were under threat because the impugned Gazette Notice directed regularisation and transfer to the 1st Respondent, and a restriction had been placed on the title, creating a real danger of alienation.
The court held that the right to hold the suit property is protected under Article 40 of the Constitution. The Gazette Notice determined the property should be regularised and transferred to the 1st Respondent, and the 4th Respondent confirmed placing a restriction on the title pursuant to the 3rd Respondent's directive. This demonstrated a real, imminent danger of alienation justifying conservatory orders.
Legal principles established
#- A party seeking a conservatory order must demonstrate a prima facie case with a likelihood of success and that unless the order is granted there is a real danger of suffering prejudice from the violation or threatened violation of the Constitution
- In considering a conservatory order application, the court is forbidden from making definitive findings of fact or law, which are the province of the court that will ultimately hear the main petition
- A prima facie case need not be a case which must succeed, but it must not be frivolous; the applicant must show arguable issues, including arguable constitutional issues
- The real danger relied upon must be imminent, evident, true and actual and not fictitious; a remote and unlikely threatened violation will not attract the court's attention
Court orders
#- 1.A conservatory order restraining the Respondents from in any manner whatsoever, whether themselves, their servants, agents or advocates or any of them or otherwise, from enforcing the Gazette Notice, pending the hearing of the Petition
- 2.A conservatory order restraining the Respondents, their servants and/or agents from interfering with the Petitioner's use, ownership and utility of Title No. Chembe/Kibabamshe/407, pending the hearing of the Petition
- 3.The conservatory orders to issue as prayed in Prayers 4 and 5 of the application but only in so far as they relate to the suit property and not any other parcel of land
- Jurisdiction invoked
- Articles 22 and 23(3)(c) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Likizo Limited v Nasib Kashuru Mumbo & 4 others [2018] KEELC 1124 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 20th September 2017 within a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1124/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.