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ELCDismissedPetitioners' Notice of Motion dated 18th July, 2018 (Petition unspecified in judgment)· [2018] KEELC 1549 (KLR)

Joseph Kimeto Ole Mapelu & 12 others v Cabinet Secretary, Ministry of Land Housing And Urban Development & 11 others [2018] KEELC 1549 (KLR)

Environment and Land Court
17 September 2018
MKMohammed Noor Kullow
2,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' bid to halt Mau Forest evictions because the evictions had already happened and no urgent threat remained.

What this practically means

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Executive summary

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The Petitioners, owners of parcels of land comprising five former Group Ranches (Reiyo, Enakishomi, Sisiyan, Enoosokon and Nkaroni) adjacent to the Maasai Mau section of the Mau Forest, moved the Court by a Notice of Motion dated 18th July 2018 under Rule 24(1) of the Constitution of Kenya (Protection of Rights and Freedoms) Practice Rules. They sought interim and conservatory orders restraining the Respondents from forceful eviction, harassment, demolition, trespass and alienation of their land, together with leave for substituted service. They contended they held titles issued upon lawful subdivision with consent of the defunct Narok County Council, that a 2005 eviction attempt had been stopped by court, and that the evictions infringed Article 10 values and amounted to compulsory acquisition without due process. The Respondents opposed, deponing through the acting Director of Land Adjudication and Settlement and Narok County Commissioner George Natembeya that Maasai Mau is trust land under Narok County Government; that the group ranches encroached into the forest upon subdivision, acquiring extra acreage beyond adjudicated portions; and that the evictions served the wider public interest in protecting the Mau water tower. The 2nd Interested Party also opposed, contending the Petitioners' land lay outside the adjudication section. The Court, per Mohammed Noor Kullow J, held that conservatory orders demand a higher threshold than ordinary interlocutory orders: a prima facie case with a clear, unmistakable and materially threatened right. Finding no tangible and imminent threat because the evictions had already occurred, and the issues being highly contested and fit for a full hearing, the Court dismissed the application with costs in the cause.

Key legal issues

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01

Whether conservatory orders should issue pending determination of the Petition

Holding

Application dismissed; no prima facie case or tangible and imminent threat demonstrated, and the application was overtaken by events

Reasoning

The court held that conservatory orders demand a higher threshold than ordinary interlocutory orders. Relying on Nguruman Limited v Jan Bonde Niwagaba, a party must show a clear and unmistakable right directly threatened. Here the acts complained of had already occurred before the Petition was filed, so no tangible and imminent threat existed. Further, the issues were hotly contested and could only be resolved at a full hearing with evidence.

p. 5
02

Whether the court should determine the genuineness of the Petitioners' titles at the interlocutory stage

Holding

No; the question of whether titles are genuine and properly obtained is reserved for the full hearing

Reasoning

The judge expressly declined to make findings on whether the titles held by the Petitioners were genuine or fraudulently obtained, holding that at the interlocutory stage the only question is the threatened violation of rights and preservation of the suit land. Such contested factual issues require evidence at a full hearing.

p. 5

Legal principles established

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  • Conservatory orders are not the usual interlocutory orders; the threshold is higher and a party must demonstrate a prima facie case
  • Conservatory orders are futuristic and cannot be applied retroactively to acts already completed

Court orders

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  1. 1.The Notice of Motion dated 18th July 2018 is dismissed
  2. 2.Costs of the Application be in the cause

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Freedoms) Practice RulesRule 24(1)/Rule 23
  • Constitution of KenyaArticle 10

Cases cited (1)

  • Nguruman Limited –Versus- Jan Bonde Nietwen and 2 others
    (2014) eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Freedoms) Practice Rules, Rule 24(1)/Rule 23 (constitutional petition jurisdiction)

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, "Joseph Kimeto Ole Mapelu & 12 others v Cabinet Secretary, Ministry of Land Housing And Urban Development & 11 others [2018] KEELC 1549 (KLR)", Case Analysis (2018). Petitioners' Notice of Motion dated 18th July, 2018 (Petition unspecified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1549/eng@2018-09-17

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