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ELCAllowedNotice of motion dated 12th February 2020 in a constitutional petition (Embu ELC)· [2020] KEELC 644 (KLR)

Muriithi Njagi and 50 others v Kathi Group Ranch Thro’Ivara Cue & 3 others [2020] KEELC 644 (KLR)

Environment and Land Court
29 October 2020
1,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Embu (Y.M. Angima, J) on a notice of motion dated 12th February 2020 brought by the Petitioners under Articles 23(3)(b) & (c), 40(1), 60 and 63 of the Constitution, Section 68 of the Land Registration Act 2012. The Petitioners, claiming to be members of the Kathi clan whose ancestral land was parcel Mbeti/Gachuriri/170 (about 271 ha of clan land), alleged that the Respondents fraudulently caused it to be registered in the name of Kathi Group Ranch and subdivided it into parcels 613-666, selling portions to family members and outsiders, while about 100 clan members and their families have occupied and developed the land since the 1960s and 1970s. They sought conservatory orders (inhibition) and a temporary injunction to prevent further dealings and eviction pending trial. The Respondents disputed the claims, asserting the Group Ranch was lawfully incorporated in 1975 and the parcel lawfully registered through adjudication, and raised res judicata (without annexing the prior pleadings). The Interested Parties did not participate. Applying the Munya test for conservatory orders and the Giella v Cassman Brown principles for injunctions, the court found a prima facie case - noting the adjudication book recorded parcel 170 as Kathi clan land - irreparable hardship not compensable by damages, and balance of convenience favouring the Petitioners in occupation. The court allowed the motion in terms of orders 2, 3 and 4: inhibition against further dealings, temporary injunction against interference or eviction, service on the Land Registrar and Land Control Board, with costs in the cause.

Key legal issues

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01

Whether a conservatory order should issue to preserve the suit properties pending determination of the petition

Holding

Conservatory order granted in terms of order No. 2 of the motion; further alienation would render the petition nugatory or academic.

Reasoning

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.

p. 3
02

Whether a temporary injunction should issue on the Giella v Cassman Brown principles

Holding

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.

Reasoning

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.

p. 4
03

Costs of the interlocutory application

Holding

Costs in the cause, given that the constitutional petition remains pending.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(b) & (c), 40(1), 60, 63
  • Land Registration ActSection 68
  • Land (Group Representative) Act
  • Land Adjudication Act
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (3)

  • Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Giella V Cassman Brown & Co. Ltd
    [1973] EA. 358
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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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, "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.