Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedPetition dated 9th October 2018 (Embu ELC Petition)· [2019] KEELC 3231 (KLR)

Bedan Munyi & 77 others v Gekara Group Ranch through Herbert Nthiri & 52 others [2019] KEELC 3231 (KLR)

Environment and Land Court
16 May 2019
YAY.M. Angima
1,600 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Embu Environment and Land Court froze all transactions on contested Gekara clan land sub-divisions, protecting hundreds of families' claim until the case is fully heard.

What this practically means

#

Executive summary

#
This is an interlocutory ruling of the Environment and Land Court at Embu (Y.M. Angima, J) on a notice of motion dated 9th October 2018 filed by the Petitioners, who claimed to represent about 400 families of the Gekara clan occupying parcel No. Mbeti/Gachuriri/172 as communal clan land since the 1960s or 1970s. They alleged that the parcel had been illegally, irregularly and fraudulently sub-divided into parcels Nos. Mbeti/Gachuriri/426 to 4490 and allocated to the Respondents, said to include close relatives of the 1st to 6th Respondents and non-clan purchasers, after judgment in Embu ELC No. 224 of 2015, a suit in which the Petitioners were not parties. The motion, anchored on Articles 23(3)(b), 40(1), 60 and 63 of the Constitution and section 68 of the Land Registration Act, sought a conservatory order in the nature of an inhibition restraining further dealings with the sub-divisions pending determination of the petition. Several Respondents filed grounds of opposition and replying affidavits and the application was canvassed by written submissions. Guided by Gatirau Peter Munya v Dickson Mwenda Kithinji and Judicial Service Commission v Speaker of the National Assembly, the court held that conservatory orders are constitutional remedies granted on the inherent merit of the case with regard to public interest and constitutional values. Satisfied that the petition was neither frivolous nor fanciful and warranted a full hearing, the court allowed the application in terms of prayers 2 and 3, issued the inhibition, directed service on the Registrar, Siakago, and the Gachoka Land Control Board, and ordered that costs of the application be costs in the cause.

Key legal issues

#
01

Whether the Petitioners established a case for a conservatory order (inhibition) over the suit parcels

Holding

Yes; the court, without delving into the merits, found the petition worthy of a full hearing and granted the inhibition to preserve the property pending trial.

Reasoning

Guided by Gatirau Peter Munya v Dickson Mwenda Kithinji and Judicial Service Commission v Speaker of the National Assembly, the court held that conservatory orders are constitutional remedies granted on the inherent merit of a case, bearing in mind public interest and constitutional values rather than the private-law tests of irreparable harm and probability of success. Considering the nature of the petition and reliefs sought, and the risk of dispositions defeating the petitioners' claim, the court found the petition not frivolous and granted the inhibition in terms of prayers 2 and 3.

p. 3

Legal principles established

#
  • A conservatory order should issue where a petition is not frivolous or merely fanciful and is worthy of consideration at a full hearing, to preserve the subject matter and prevent a barren result.

Court orders

#
  1. 1.Conservatory order in the nature of an inhibition restraining the respondents, their agents, servants, transferees, purchasers or anyone acting in their behest from any further dealings with the registers of land parcels Nos. Mbeti/Gachuriri/426 to 4490 (sub-divisions of Mbeti/Gachuriri/172) pending the hearing and determination of the application and the main suit
  2. 2.Orders of inhibition to be served upon The Registrar, Siakago, Embu County and The Gachoka Land Control Board for compliance
  3. 3.Costs of the application to be costs in the cause

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 23(3)(b), 40(1), 60, 63
  • Land Registration Act 2012Part VII, section 68

Cases cited (2)

  • Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others
    [2014]eKLR
  • Judicial Service Commission Vs Speaker of the National Assembly & Another
    (2013) eKLR
Jurisdiction invoked
Articles 23(3)(b), 40(1), 60 and 63 of the Constitution of Kenya 2010 and section 68 of the Land Registration Act 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bedan Munyi & 77 others v Gekara Group Ranch through Herbert Nthiri & 52 others [2019] KEELC 3231 (KLR)", Case Analysis (2019). Petition dated 9th October 2018 (Embu ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3231/eng@2019-05-16

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