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ELCDismissedNotice of Motion dated 24th November 2020 (petition not numbered in judgment)· [2020] KEELC 368 (KLR)

John Njenga Mbugua & 5 others v Cabinet Secretary, Ministry of Lands,Housing and Urban Development & 6 others [2020] KEELC 368 (KLR)

Environment and Land Court
10 December 2020
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop forest land titling because the residents, evicted in 1988, couldn't prove a current legal right to the forest.

What this practically means

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Executive summary

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The petitioners, claiming to act for original residents of Nessuit, Mariashoni, Sururu, Likia, Teret, Kiptunga, Barget, Molo and Elburgon Forests, moved the court by Notice of Motion dated 24th November 2020 seeking interim conservatory orders restraining the respondents from subdividing, alienating, allocating or issuing titles over those forest lands pending hearing of their constitutional petition. They alleged forceful eviction in 1988 without alternative settlement, violations of Articles 27, 28, 40 and 47, and an imminent titling exercise to be concluded on 11th December 2020 with the President issuing title deeds, and asked that they and the Ogiek community be given first priority in allocation. The application was unopposed but the court required the applicants to establish a case for the orders. Applying the Supreme Court's test in Gatirau Peter Munya v Dickson Mwenda Kithinji and the prima facie case standard in CREAW and Nguruman, Justice D. O. Ohungo held that the applicants failed to demonstrate a prima facie case: their eviction claim was 31 years old and unexplained; they conceded the land was forest land and hence public land under Article 62(1)(g), yet did not show entitlement to it, employment as a forest cultivator not amounting to title; no material proved the alleged titling process; and the intended beneficiaries of the titles were not joined despite having a right to be heard. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case for conservatory orders

Holding

They did not; their 1988 eviction claim was 31 years old and unexplained, and their alleged entitlement to public forest land was unsubstantiated

Reasoning

The court accepted the Munya and CREAW tests for conservatory orders. While constitutional claims have no limitation period, the applicants had to explain their inaction since 1988. They conceded the land is forest land, hence public land under Article 62(1)(g), yet failed to show any valid claim to it; employment to cultivate forest land does not morph into title. Public interest also militated against the orders.

p. 3
02

Whether the alleged imminent sub-division, allocation and issuance of titles was demonstrated

Holding

No material was placed before the court showing the alleged actions were taking place or imminent

Reasoning

The applicants alleged the process would be finalized on 11th December 2020 with the President issuing titles, but produced no notice, correspondence or other material supporting this. Moreover, the alleged beneficiaries of the titles, who have a right to be heard before adverse orders, were not joined to the petition, undermining the claim for interim relief against them.

p. 3

Legal principles established

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  • Conservatory orders are 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 alone
  • An applicant for a conservatory order must demonstrate a prima facie case with likelihood of success and real danger of prejudice from the violation or threatened violation of the Constitution
  • A prima facie case requires a clear and unmistakable right directly threatened by the act sought to be restrained
  • Employment to cultivate forest land does not, without more, confer title to public land
  • Persons who would be beneficiaries of adverse orders must be joined before such orders are issued

Court orders

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  1. 1.Notice of Motion dated 24th November 2020 dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 62 and Article 62(1)(g)

Cases cited (5)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR
  • Obuya Bagaka v Kenya School of Government
    [2019] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Giella v Cassman Brown
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition; Articles 27, 28, 40 and 47 invoked; Article 62 on public land)

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, "John Njenga Mbugua & 5 others v Cabinet Secretary, Ministry of Lands,Housing and Urban Development & 6 others [2020] KEELC 368 (KLR)", Case Analysis (2020). Notice of Motion dated 24th November 2020 (petition not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/368/eng@2020-12-10

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