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ELCDismissedConstitutional Petition dated 4th April 2017 (Kericho)· [2018] KEELC 4900 (KLR)

Bor v Courts & 4 others (Environment & Land Case 3 of 2017) [2018] KEELC 4900 (KLR)

High Court of Kenya
13 July 2018
JOJ.M ONYANGO
1,061 words in judgment
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The bottom line

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A Kenyan court refused to halt a 2011 land case because the petitioner waited six years — delays can permanently cost you your rights.

What this practically means

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Executive summary

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The Petitioner, Mathew Kipketer Bor, filed a constitutional petition on 4th April 2017 seeking declarations that the judgment in Kericho Resident Magistrate's Court Land Tribunal Case No. 62 of 2011 infringed his constitutional rights over land parcel KERICHO/CHEMOIBEN/297 and was ultra vires the Constitution, that section 7(2) of the repealed Land Disputes Tribunal Act was invalid, an order of quashing that judgment, and a permanent injunction against the 4th and 5th Respondents. He contemporaneously moved by Notice of Motion dated 5th April 2017 seeking a stay of the proceedings and execution of the decree in the Tribunal case pending hearing of the petition. The 4th and 5th Respondents opposed, arguing the petition was incompetent, an abuse of process, that no appeal was lodged against the Tribunal decision, that the decree was executed in March 2012, and that the suit land had since been resurveyed, subdivided and transferred. The court framed the sole issue as whether the applicant was entitled to injunctive relief. Applying Giella v Cassman Brown and Mrao v First American Bank, J.M Onyango J held the petitioner had not established a prima facie case with a probability of success, as his proper remedy was judicial review within six months of the 2011 decision. No irreparable loss was shown since the decree was executed in 2012 and the land had changed hands; equity aids the vigilant, not the indolent. The motion was dismissed with costs to the 4th and 5th Respondents on 13th July 2018.

Key legal issues

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01

Whether the petitioner established a prima facie case with a probability of success

Holding

He did not; no infringement of his constitutional rights was established

Reasoning

Applying Mrao v First American Bank, the court found the petitioner had not demonstrated any apparent infringement of a right calling for rebuttal. The proper remedy against the Tribunal/RM's court decision was judicial review within six months of the 2011 decision, not a constitutional petition filed in 2017.

p. 3
02

Whether the petitioner would suffer irreparable loss absent the stay/injunction

Holding

No; the decree was executed in March 2012 and the land has since been subdivided and transferred

Reasoning

The order sought to be stayed was executed in 2012 and the affected land has changed hands with new title numbers issued, so no irreparable harm was shown. The court invoked the equitable maxim that equity aids the vigilant, not the indolent, holding the petitioner slept on his rights for some five years.

p. 3

Legal principles established

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  • An applicant for interlocutory injunctive relief must meet the Giella v Cassman Brown conditions: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, balance of convenience
  • A challenge to a lower court's decision lies by judicial review within six months, not by constitutional petition
  • Equity aids the vigilant, not the indolent

Court orders

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  1. 1.The Notice of Motion dated 5th April 2017 is dismissed
  2. 2.Costs of the application awarded to the 4th and 5th Respondents

Authorities

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Legislation

  • Land Disputes Tribunal Actsection 7(2)

Cases cited (2)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Constitutional petition jurisdiction (the petition invoked the Constitution; the motion sought interlocutory relief pending determination of the petition)

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, "Bor v Courts & 4 others (Environment & Land Case 3 of 2017) [2018] KEELC 4900 (KLR)", Case Analysis (2018). Constitutional Petition dated 4th April 2017 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4900/eng@2018-07-13

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