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ELCPartially AllowedChamber Summons application dated 11th December 2019 (in a Petition)· [2020] KEELC 1028 (KLR)

Fresco Bushlands (K) Limited v National Police Service & 4 others [2020] KEELC 1028 (KLR)

Environment and Land Court
15 October 2020
JOJ. O. Olola
1,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's police cannot evict anyone from land without a court order, and the Environment and Land Court will protect landowners who face forced removal.

What this practically means

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Executive summary

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Fresco Bushland (K) Limited, a lessee of 95,000 acres of Kilifi LR No. 14248 from the Agricultural Development Corporation under a lease dated 26/5/2010, brought a Chamber Summons in its constitutional Petition seeking conservatory orders restraining the police respondents from evicting it, its servants, livestock and properties from the land, and an order compelling the Coastal Region Police Commander to disclose in writing the reasons for his eviction directive under Article 47(2) of the Constitution. The Petitioner alleged that on 8th December 2019 the Commander issued eviction orders which were communicated to subordinate commanders who deployed officers to the land, issued eviction notices and remained on standby. The Respondents, in a Replying Affidavit sworn by the OCPD Malindi, opposed the application, contending that the Petitioner had trespassed onto neighbouring Vital Bio-Energy Ltd's land by about five kilometres, generating violent boundary disputes, criminal cases and inquiry files, and that the police deployment was only to maintain law and order. The court, applying the settled principles for conservatory orders as set out in Platinum Distillers and Gatirau Peter Munya, noted that the Respondents never denied that officers had moved onto a portion of the Petitioner's land or that the alleged intention was eviction. Associating itself with Standard Newspapers on due process, the court held that absent a court order the police have no power to evict. The court granted Prayer 3 of the Summons — a conservatory order restraining eviction, displacement, seizure or demolition pending the Petition — and ordered that costs of the application abide the outcome of the Petition. Prayers 4 and 5 were not granted.

Key legal issues

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01

Whether conservatory orders should issue against the police pending the Petition

Holding

Conservatory orders were granted because the Respondents did not deny either their presence on the Petitioner's land or the alleged intention to evict, and the police lacked authority to evict without a court order

Reasoning

The court applied the principles that at the interlocutory stage it need not make definitive findings of fact or law, but only evaluate the material to determine whether a prima facie case exists and whether refusal would prejudice the applicant. The Replying Affidavit failed to deny that officers had moved onto a portion of the Petitioner's 95,000-acre leasehold or that the purpose was eviction; it merely justified the deployment by reference to boundary disputes. Given the State's duty of due process, protection pending trial was warranted.

p. 3

Legal principles established

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  • Absent a court order, the police have no power to evict or displace a party from its property
  • While police have a duty to prevent crime, they must abide by the law and there must be due process in the exercise of their mandate

Court orders

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  1. 1.A conservatory order restraining the Respondents, by themselves, agents or officers, from evicting, displacing or relocating the Petitioner, its agents/servants or employees, or seizing its properties or livestock, or demolishing its structures on Kilifi LR No. 14248, or in any way interfering with the Petitioner's rights under the Lease dated 26/5/2010, pending the hearing and determination of the Petition
  2. 2.Costs of the application to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23; Article 47(2)

Cases cited (3)

  • Platinum Distillers Ltd –vs- Kenya Revenue Authority
    (2019) eKLR
  • Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Standard Newspapers Ltd & Another –vs- Attorney General & 4 Others
    (2013) eKLR
Jurisdiction invoked
Article 23 and Article 47(2) of the Constitution (interlocutory application in a constitutional Petition)

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, "Fresco Bushlands (K) Limited v National Police Service & 4 others [2020] KEELC 1028 (KLR)", Case Analysis (2020). Chamber Summons application dated 11th December 2019 (in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1028/eng@2020-10-15

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