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ELCPartially Allowednot stated in the judgment as provided· [2018] KEELC 3544 (KLR)

County Government of Kirinyaga v Cabinet Secretary, Ministry of Land, Housing & Urban Development & 26 others [2018] KEELC 3544 (KLR)

Environment and Land Court
23 April 2018
PNP.M. Njoroge
666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court temporarily halted surveying and allocation of Mwea Settlement Scheme land but refused to evict or restrict people already living on it.

What this practically means

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Executive summary

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This is an ex-parte interlocutory ruling of the Environment and Land Court at Chuka by P.M. Njoroge, J, in a constitutional petition concerning land at the Mwea Settlement Scheme. The applicant, Nahashon Mugo Kabeu, moved the court by a notice of application dated 16 April 2018 under Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, seeking certification of urgency and temporary injunctions restraining the respondents and interested parties from surveying, beaconing and allocating the scheme land, and from allowing occupation of or entry onto it, pending the hearing of prayers 4 and 5 and of the petition. In support, it was contended that the titling process was impugned by the petition, that the land is community land and ancestral grazing land of the Agikuyu people, that the Embu County Government was granting occupation to several persons, and that the allocation process lacked public participation and was conducted in secrecy. Counsel at the ex-parte stage sought prayers 1, 2 and 3, warning of a possible breakdown of law and order if occupation proceeded. The court declined to certify the matter urgent but directed that it be heard on a priority basis. It granted prayer 2 in terms of section 63(e) of the Civil Procedure Act until 22 May 2018, when directions would be given by Hon. Justice Angima, ELC Judge, at Embu Law Courts. It refused the injunction against occupation and entry because such an order would affect persons already occupying the suit land, ordered service on all other parties within 10 days, and fixed directions for 22 May 2018.

Key legal issues

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01

Whether to grant ex-parte interim injunctive relief restraining surveying, beaconing and allocation of the Mwea Settlement Scheme land

Holding

Prayer 2 was granted in limited terms under section 63(e) of the Civil Procedure Act, expiring at the directions hearing on 22 May 2018

Reasoning

Counsel for the applicant argued that the surveying, beaconing and titling were done secretly, that the land is community and ancestral land of the Agikuyu people, that the process lacked public participation, and that allowing occupation would defeat the petition and risk a breakdown of law and order. The court found some relief warranted on an interim basis but confined it, directing service on all parties and directions before Justice Angima. It expressly refused the occupation/entry injunction.

p. 3
02

Whether an injunction could issue stopping occupation and entry by purported allocatees

Holding

Refused

Reasoning

The court reasoned that such an order would operate against persons who are already denizens and occupants of the suit land, and was therefore untenable. The application was instead adjourned for service and directions, preserving the status quo only to the limited extent of the section 63(e) order.

p. 3

Legal principles established

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  • Interim injunctive relief over land may issue under section 63(e) of the Civil Procedure Act pending directions in a constitutional petition, but orders will not be granted that enjoin persons already in occupation of the suit land

Court orders

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  1. 1.Matter is not certified urgent but is to be heard on Priority Basis
  2. 2.Prayer 2 granted in terms of section 63(e) of the Civil Procedure Act until the 22nd of May, 2018, when directions will be given by the Hon. Justice Angima, ELC Judge, at Embu Law Courts
  3. 3.The application to be served upon all other parties within 10 days
  4. 4.Directions on 22nd May, 2018

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 7
  • Civil Procedure Actsection 63(e)
Jurisdiction invoked
Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; interim relief under section 63(e) of the Civil Procedure Act

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, "County Government of Kirinyaga v Cabinet Secretary, Ministry of Land, Housing & Urban Development & 26 others [2018] KEELC 3544 (KLR)", Case Analysis (2018). not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3544/eng@2018-04-23

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