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ELCPartially AllowedNairobi ELC Petition Numbers 22, 23 and 24 of 2020 (Consolidated)· [2020] KEELC 787 (KLR)

Beige Investments Limited v Kenya Forest Service & others [2020] KEELC 787 (KLR)

Environment and Land Court
30 October 2020
BEB M Eboso
1,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court protected three homeowners' titles to Ngong Road Forest land, freezing any sale, mortgage or development until the ownership dispute is decided.

What this practically means

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Executive summary

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Three related petitions by Beige Investments Limited, Langata Gardens Limited and Silverline Limited against Kenya Forest Service and four other respondents sought declaratory and prohibitory orders protecting their respective titles to LR Numbers 18591/2, 18591/9 and 18591/10, parcels hived off Ngong Road Forest, together with notices of motion dated 30 June 2020 seeking conservatory orders against demolition, eviction and fencing pending the hearing of the petitions. The petitioners, holding registered titles acquired after due diligence and on which they had developed valuable residential estates, feared repossession on the strength of instructions alleged to have been issued in June 2020. The respondents, through replying affidavits sworn by Mr Evans Kegode, conceded the titles were issued by the Department of Lands but maintained the original allocations were irregular, not having been preceded by degazettement of gazetted forest land reserved for Langata Women Prison, and urged that any conservatory orders be conditional. The 3rd respondent raised a preliminary objection on jurisdiction under Sections 152F and 155 of the Land Act and Article 162 of the Constitution, which the court rejected, holding those provisions address unlawful occupation of public land without right or licence, whereas the dispute here concerns the validity of titles. Applying the Supreme Court's criteria in Gatirau Peter Munya, the court found conservation of the developments and occupancy merited. The court consolidated the three petitions and issued conservatory orders preserving the suit properties, the developments thereon and the occupancy thereof, but restrained further disposal, charging or development of the titles pending determination, with costs in the respective causes.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis the Land Act eviction and repossession provisions

Holding

The preliminary objection fails; the Land Act provisions invoked apply to unlawful occupation of public land without right or licence, whereas here the dispute concerns the validity of titles issued by the Department of Lands, a matter the court may entertain.

Reasoning

The 3rd respondent objected that Sections 152F and 155 of the Land Act, read with Article 162, ousted the court's jurisdiction. The court held those provisions govern unlawful occupation of public land without right or licence. Here the petitioners hold registered titles from the Department of Lands and the real dispute is the validity of those titles, so the court has jurisdiction.

p. 1
02

Criteria for grant of conservatory orders pending hearing of a petition

Holding

Conservatory orders issue on the inherent merit of the application, having regard to public interest and constitutional values. Given registered titles and valuable residential developments, preservation of the status quo was merited.

Reasoning

Applying the Supreme Court's articulation in Munya, the court noted conservatory orders are not governed by the interlocutory injunction tests. The respondents conceded the allocations were made by Government authorities and that valuable permanent developments exist. Since the titles were issued by the Department of Lands and the central issue at trial is their validity under Article 40 and Section 25 of the Land Registration Act, preservation was warranted.

p. 2
03

Consolidation of related petitions

Holding

The three petitions raising identical issues against the same respondents were consolidated for hearing and disposal.

Reasoning

The three petitions concern adjacent parcels hived off Ngong Road Forest, raise the same constitutional question on the validity of the petitioners' titles, are brought by the same firm and are opposed by the same respondents. A single determination promotes consistency and expedition.

p. 2

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 the private-law tests of irreparable harm and probability of success applicable to interlocutory injunctions
  • The ELC has jurisdiction to determine disputes over the validity of titles issued by the Department of Lands notwithstanding Sections 152F and 155 of the Land Act, which apply to unlawful occupation of public land without any right or licence

Court orders

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  1. 1.Nairobi ELC Petition Numbers 22, 23 and 24 of 2020 consolidated for purposes of hearing and disposal
  2. 2.Conservatory order issued preserving LR Number 18591/2 (Grant No IR 63385), LR Number 18591/9 (Grant Number IR 63081) and LR Number 18591/10 (Grant Number IR 63079), the developments thereon, and the occupancy thereof, pending the hearing and determination of the petitions
  3. 3.The said titles shall not be disposed, charged or developed further during the subsistence of the three petitions
  4. 4.Costs of the three applications to be in the respective causes

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 23(3)(c)
  • Constitution of Kenya, 2010Article 162
  • Land ActSections 152F, 155(9), 155(10), 155(11)
  • Land Registration ActSection 25

Cases cited (2)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Attorney General v Summair Bansraj
    (1985) 38 WIR 286
Jurisdiction invoked
Article 23(3)(c) and Article 40 of the Constitution; Article 162 of the Constitution (jurisdiction of the ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Beige Investments Limited v Kenya Forest Service & others [2020] KEELC 787 (KLR)", Case Analysis (2020). Nairobi ELC Petition Numbers 22, 23 and 24 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/787/eng@2020-10-30

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