Uathimo Farm Limited & another v Attorney General & 7 others [2019] KEELC 2993 (KLR)
The bottom line
#A Kenyan land court protected a registered owner's title with conservatory orders, freezing all occupation and interference until the ownership dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for grant of conservatory orders pending hearing of a constitutional petition was met
The Petitioners established the threshold; conservatory orders were granted protecting the suit property pending full hearing.
The court found the 1st Petitioner's registered title to LR 9731/2 absolute and impeachable only through due process. The 8th Respondent's claim of long possession was tenuous, its member approbating and reprobating. Destruction of property was shown, the county respondents did not justify their intervention on any legal basis, and public interest favoured protecting private title. Prayers 5, 6 and 7 were granted.
Whether the Ramanlal Trambaklal Bhatt prima facie test applies in a constitutional petition
The criminal-law definition of prima facie case does not apply to constitutional conservatory order applications.
The 1st and 5th Respondents' submissions relied on the Bhatt definition of prima facie case. The court held this was a tangent because that definition belongs to criminal trials, not constitutional petitions, and disregarded those submissions in favour of the constitutional standard of an arguable case plus public interest considerations.
Whether an eviction disguised as a prohibitory injunction can be granted at the interlocutory stage
The court rejected the argument that the conservatory orders were camouflaged eviction orders, since the Respondents did not claim ownership or occupation rights.
The 3rd and 4th Respondents invoked Lucy Wangui Gachera, arguing the application camouflaged an eviction. The Petitioners distinguished it because there the applicant was in occupation claiming ownership, whereas here the county Respondents admitted they were not claiming ownership. The court accepted the orders were meant to preserve the subject matter and the right not to be deprived of property without due process.
Legal principles established
#- A registered proprietor's absolute title can only be impeached through due process of law, and poverty cannot justify depriving another of property rights.
- Public interest is better served by upholding the sanctity of a registered title over private property.
Court orders
#- 1.Conservatory order restraining the Respondents, jointly or severally or by persons claiming through them, from alienating, occupying, sub-dividing, distributing or in any manner acting or claiming any interest in land parcel LR No.9731/2 pending hearing and determination of the Petition
- 2.Conservatory order restraining the Respondents from trespassing on or in any way interfering with the Petitioners' quiet possession and enjoyment of land parcel LR No.9731/2 pending hearing and determination of the Petition
- 3.Costs of and occasioned by the application provided for (granted to the Petitioners)
- Jurisdiction invoked
- Articles 22 and 23(3)(b) and (c) of the Constitution and Rule 23(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010 (Mutunga Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uathimo Farm Limited & another v Attorney General & 7 others [2019] KEELC 2993 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 24th October, 2017 in a Petition filed at Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2993/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.