Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 13th June 2019 (Notice of Motion dated 10th June 2019)· [2020] KEELC 2611 (KLR)

Shake Trading Company Limited v National Land Commission & 2 others [2020] KEELC 2611 (KLR)

Environment and Land Court
5 May 2020
SOS. OKONG'O
1,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Nairobi court temporarily blocked the revocation of a landowner's title because the National Land Commission cancelled it without giving the owner a hearing.

What this practically means

#

Executive summary

#
The petitioner, the registered proprietor of L.R No. 209/13279, petitioned the court on 13th June 2019 after the 1st respondent, through Gazette Notice No. 6865 published on 17th July 2017, directed the 2nd respondent to revoke its title on the ground that the property was reserved for the expansion of North Highridge Primary School. The petitioner contended that the revocation decision was made without a hearing, violating its rights under Articles 19(1), 22(1), 25(c), 27(1), 40, 47, 48 and 50 of the Constitution, including the rights to property, fair administrative action and legitimate expectation. Together with the petition it filed a Notice of Motion dated 10th June 2019 seeking a conservatory injunction restraining revocation pending the petition, citing potential financial loss exceeding US$55,000,000. The respondents filed no responses. The 1st respondent did not oppose the application, while the 3rd respondent objected on the basis that it had no role in the cancellation. Applying the test in George Odero v Lake Victoria Environment Programme & Others [2015] eKLR, the court found the petitioner had demonstrated a prima facie case of violation of the right to be heard and the right to property, and that it would suffer substantial loss if revocation proceeded. The court allowed the application in terms of prayer 3 as against the 1st and 2nd respondents only, with the conservatory order to last 24 months or until determination of the petition, and costs in the cause.

Key legal issues

#
01

Whether the threshold for a conservatory order was met

Holding

The petitioner established a prima facie case of violation of the right to be heard and to property, and stood to suffer substantial loss if the title was revoked pending the petition.

Reasoning

The court applied the three-part test for conservatory orders: prima facie case, likelihood of prejudice or injury, and public interest. Uncontroverted evidence showed the petitioner was the registered owner and that the 1st respondent recommended revocation of its title without serving notice, engaging the right to a fair hearing and threatening the right to own property. The petitioner also demonstrated potential substantial loss exceeding US$55,000,000 if revocation proceeded.

p. 2

Legal principles established

#
  • An applicant for a conservatory order under rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 must demonstrate a prima facie case, that they are likely to suffer prejudice or injury if the order is not granted, and that it is in the public interest to grant the order.

Court orders

#
  1. 1.Conservatory order in terms of prayer 3 of the Notice of Motion dated 10th June 2019, granted as against the 1st and 2nd respondents only
  2. 2.The conservatory order to last for 24 months from the date of the ruling or until the hearing and determination of the petition, whichever comes earlier

Authorities

#

Legislation

  • Constitution of KenyaArticles 19(1), 22(1), 25(c), 27(1), 40(1), (2) and (6), 47(1) and (2), 48(1) and (2), 50(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013rule 23

Cases cited (1)

  • George Odero v Lake Victoria Environment Programme & Others
    [2015] eKLR
Jurisdiction invoked
Articles 19(1), 22(1), 25(c), 27(1), 40(1), (2) and (6), 47(1) and (2), 48(1) and (2) and 50(1) of the Constitution; rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shake Trading Company Limited v National Land Commission & 2 others [2020] KEELC 2611 (KLR)", Case Analysis (2020). Petition dated 13th June 2019 (Notice of Motion dated 10th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2611/eng@2020-05-05

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