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ELCDismissedNot stated in the judgment excerpt (constitutional petition filed 4th February 2016, Kakamega)· [2019] KEELC 2331 (KLR)
George Milimu Sahini v Attorney General & another [2019] KEELC 2331 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#The High Court in Kakamega dismissed a landowner's bid to freeze a land transfer because he waited three years to pursue his urgent application.
What this practically means
#Executive summary
#The petitioner, George Milimu Sahini, moved the High Court at Kakamega by notice of motion dated 4th February 2016 under rules 3, 21 and 22 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012, seeking urgent ex parte conservatory orders, and later their confirmation pending the hearing of his petition, to stay an order of the Chief Magistrate's Court given on 3/6/2015 in Kakamega CM Miscellaneous Application No. 226 of 2001. That order directed the Executive Officer to execute transfer documents for L.R. No. Isukha/Shitochi/3143 on the petitioner's behalf, transferring the land to the 2nd respondent pursuant to an adopted Shinyalu Land Disputes Tribunal decision. The petitioner, registered proprietor through succession Cause No. 617 of 2001, alleged the magistrate's orders were made without jurisdiction, without a substantive claim, without fair hearing and in breach of constitutional protections of property, fair administrative action and access to justice. The 2nd respondent opposed, contending the petitioner obtained registration by dubious means in 2007, never appealed the adopted award, that the Executive Officer had already signed the transfer documents, and that the petitioner had filed a separate EL Case No. 315 of 2015 seeking cancellation of the title, making this petition an abuse of process. Relying on the Supreme Court's definition of conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji, Matheka J held the applicant had to establish a prima facie case with likelihood of success and prejudice, but the three-year delay destroyed urgency and the orders sought were final in character and could not issue at an interlocutory stage. The application was dismissed with costs in the cause, and the parties were advised to fix the main petition for hearing.
Key legal issues
#01
Whether conservatory orders staying the Magistrate's Court execution order should issue
Holding
The application was dismissed; urgency had lapsed through inordinate delay and the orders sought were final relief improperly sought at an interlocutory stage
Reasoning
The court adopted the Supreme Court's definition of conservatory orders in Gatirau Peter Munya, noted that the applicant needed to show a prima facie case with likelihood of success and prejudice, but found the three-year delay destroyed urgency and that the interim orders duplicated the final relief sought in the main petition. It advised the parties to fix the main petition for hearing and dismissed the application with costs in the cause.
p. 3
Legal principles established
#- A conservatory order is granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law interlocutory injunction criteria
- An applicant for interim conservatory orders must establish a prima facie case with a likelihood of success and prejudice if the orders are not granted
- Final orders cannot be granted at an interlocutory stage
Court orders
#- 1.The application dated 4th February 2016 is dismissed
- 2.Costs to be in the cause
- 3.Parties advised to take a hearing date for the main petition
- Jurisdiction invoked
- Article 22/23 of the Constitution read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012 (Mutunga Rules), rules 3, 21 & 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Milimu Sahini v Attorney General & another [2019] KEELC 2331 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt (constitutional petition filed 4th February 2016, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2331/eng@2019-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.