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ELCPartially AllowedNotice of motion dated 26th September 2014 in a constitutional petition (Petition No. not stated in judgment)· [2019] KEELC 2175 (KLR)

Jeremy Mark Block v Kenya Forest Service; Chief Land Registrar & 3 others (Interested Parties) [2019] KEELC 2175 (KLR)

Environment and Land Court
24 July 2019
LKL. Komingoi
1,599 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (L. Komingoi, J) determines a notice of motion dated 26th September 2014 brought by Jeremy Mark Block, the petitioner, under Articles 22, 23 and 165 of the Constitution and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The petitioner sought conservatory orders pending the hearing of his constitutional petition restraining the respondent, Kenya Forest Service, from tearing down the fence on his property LR No. 214/432 Muthaiga which forms the boundary with Karura forest, from appropriating any portion of his property as delineated on registered deed plan No. 67617 from the Director of Surveys, and from interfering with the property in any manner. The respondent opposed, contending that the court lacked jurisdiction over a boundary dispute reserved to the Registrar of Titles under section 18 of the Land Registration Act, 2012, and that the disputed portion lies within Karura forest, being public land unavailable for private allocation. The court framed two issues: whether the application met the threshold for conservatory orders, and costs. Relying on the Mrao Ltd test of a prima facie case, the court held that the petition disclosed a prima facie case, that it would be rendered nugatory without the orders, and that maintaining the status quo was in the interest of justice. The court granted three conservatory orders pending the hearing and determination of the petition, and ordered that costs of the application abide the outcome of the petition.

Key legal issues

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01

Whether the application met the threshold for conservatory orders

Holding

The petition disclosed a prima facie case and would be rendered nugatory without the orders; status quo should be maintained pending trial.

Reasoning

The applicant established apparent infringement of his property rights as absolute proprietor of LR No. 214/432 Muthaiga. The court noted the Director of Surveys, joined as 4th Interested Party, would establish the true boundary at the hearing, and that if the fence is found within Karura forest it would be demolished. Pending that determination, maintaining the status quo was in the interest of justice.

p. 3

Legal principles established

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  • A prima facie case in civil matters is a case in which, on the material presented, a tribunal properly directing itself concludes that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party; it is more than an arguable case.

Court orders

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  1. 1.Conservatory order restraining the respondent, by itself or through its officers, agents and/or servants, from tearing down the fence on the petitioner's property which forms the boundary with Karura forest, pending the hearing and determination of the constitutional petition.
  2. 2.Conservatory order restraining the respondent from appropriating any portion of the petitioner's property, the boundaries being delineated per registered deed plan no. 67617 from the Director of Surveys, pending the hearing and determination of the constitutional petition.
  3. 3.Conservatory order restraining the respondent from interfering with the petitioner's property in any form or manner, especially as relates to the boundary with Karura forest delineated on registered deed plan No. 67617, pending the hearing and determination of the constitutional petition.
  4. 4.Costs of the application to abide the outcome of the petition.

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23 and 24
  • Land Registration Act, 2012Section 18

Cases cited (7)

  • Andy Forwarders Service Limited vs Capital Markets Authority
    [2011] eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Patrick Ouma Onyango & 12 Others vs The Attorney General & 2 Others
    [2005] eKLR
  • John Peter Kamau Ruhangi vs Kenya Forest Service
    [2010] eKLR
  • Republic vs Commissioner for Lands & 4 Others Exparte Associated Steel Ltd
    [2014] eKLR
  • Shelfer vs City of London Elecricity Lighting Co.
    [1895] 1 CH 287
  • Veronicah Waithera, Trustee of Interchristian Churches & 3 Others vs Kenya National Highways Authority
    [2014] eKLR
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jeremy Mark Block v Kenya Forest Service; Chief Land Registrar & 3 others (Interested Parties) [2019] KEELC 2175 (KLR)", Case Analysis (2019). Notice of motion dated 26th September 2014 in a constitutional petition (Petition No. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2175/eng@2019-07-24

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