Muriithi Njagi and 50 others v Kathi Group Ranch Thro’Ivara Cue & 3 others [2020] KEELC 644 (KLR)
The bottom line
#The Embu Environment and Land Court froze all transactions and evictions on disputed clan land in Mbeere until the ownership case is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether a conservatory order should issue to preserve the suit properties pending determination of the petition
Conservatory order granted in terms of order No. 2 of the motion; further alienation would render the petition nugatory or academic.
The court applied the Munya test that conservatory orders rest on inherent merit, public interest and constitutional values rather than private-law interlocutory tests. It found the purpose of the order was preservation of the suit properties pending trial, and that further alienation before resolution of the ownership dispute between Kathi clan and Kathi Group Ranch would render the petition nugatory or academic. On the material on record the Petitioners made out a case for the order.
Whether a temporary injunction should issue on the Giella v Cassman Brown principles
Temporary injunction granted: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience favouring the Petitioners in possession.
From the adjudication book exhibited, parcel 170 at some point was recorded as Kathi clan land, giving a prima facie case; whether due process attended the conversion is a matter for trial. Occupants with houses and developments since the 1960s/1970s would suffer serious hardship not compensable in damages. The balance of convenience tilted toward the Petitioners who appear to be in possession.
Costs of the interlocutory application
Costs in the cause, given that the constitutional petition remains pending.
While costs ordinarily follow the event under section 27 of the Civil Procedure Act, the court considered that the main constitutional petition was still pending hearing and determination, and therefore directed that costs of the application be in the cause rather than awarded outright.
Legal principles established
#- Conservatory orders are granted on the inherent merit of a case, bearing in mind the public interest and constitutional values, and are not tied to private-law tests of irreparable harm or high probability of success.
- Costs follow the event under the proviso to section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise.
Court orders
#- 1.Conservatory orders in the nature of an inhibition restraining the respondents, their agents, servants, transferees, purchasers or anyone acting on their behest from any further dealings with the registers of land parcels Nos. Mbeti/Gachuriri/613 to 666 (subdivisions of Mbeti/Gachuriri/170) pending hearing and determination of the application and main suit (order No. 2)
- 2.Temporary injunction restraining the respondents and interested parties from surveying, erecting boundaries, evicting or otherwise interfering with the Petitioners' use and occupation of land parcels Nos. Mbeti/Gachuriri/613 to 666 pending hearing and determination of the application and main suit (order No. 3)
- 3.Orders of inhibition to be served upon the Land Registrar, Siakago, Embu County and the Gachoka Land Control Board for compliance (order No. 4)
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Articles 23(3)(b) & (c), 40(1), 60 and 63 of the Constitution of Kenya, 2010; Section 68 of the Land Registration Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi Njagi and 50 others v Kathi Group Ranch Thro’Ivara Cue & 3 others [2020] KEELC 644 (KLR)", Case Analysis (2020). Notice of motion dated 12th February 2020 in a constitutional petition (Embu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/644/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.