Jacob Kiriinya v William Mutuma Kimathi, Jeniffer Karambu, Salome Kanini, Naomi Kanyua, Estate of Mary Karimi, Estate of Rachel Kinyua, Estate of Lucy Kagwiria, Julius Mbaya, Tabitha Karoki Marete & Gladys Mwari (Environment & Land Case 67 of 2019) [2021] KEELC 745 (KLR)
The bottom line
#A Kenyan land buyer who proved his purchase and developments won a one-year injunction, but conservatory orders were refused because his dispute was private, not constitutional.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a case for interim relief (conservatory orders / temporary injunction)
The court found the plaintiff had established a prima facie case with likelihood of success, likely irreparable damage not compensable by damages, and balance of convenience in his favour, warranting temporary injunction but not conservatory orders
The court applied the test in Centre for Rights Education and Awareness, Gatirau Peter Munya and Board of Management of Uhuru Secondary School. It found the plaintiff purchased the suit land for value, made developments by putting up a hotel, and the 1st, 8th and 9th defendants admitted those facts. However, because this was a private matter and not a constitutional petition under Article 23, the court granted a temporary injunction under Order 40 of the Civil Procedure Rules, to subsist for one year, rather than conservatory orders.
Whether judgment on admission and judgment in default should be entered against the defendants
Judgment on admission was entered against the 1st, 8th and 9th defendants and judgment in default was entered against the 2nd, 3rd, 4th, 5th and 7th defendants who failed to enter appearance despite service
The 1st, 8th and 9th defendants filed statements of admission of the claim after due service. The 2nd, 3rd, 4th, 5th and 7th defendants were duly served with the summons and applications but failed to enter appearance, as evidenced by the affidavit of service filed on 6.2.2020 and 28.10.2021. The court entered judgment on admission and in default but directed the matter to formal proof, with the plaintiff to comply with Order 11.
Legal principles established
#- A party seeking conservatory orders must demonstrate that his rights are under threat of violation which is likely to continue unless the orders are issued; the orders preserve the subject matter and prevent the threat of violation pending hearing
- Conservatory orders bear a public law connotation and must be granted in the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes
- An applicant for interim relief must demonstrate a prima facie case with a likelihood of success and that in the absence of the orders he will be prejudiced
- In a private matter, the appropriate relief is a temporary injunction under Order 40 of the Civil Procedure Rules, not conservatory orders, since the latter apply to constitutional petitions under Article 23
Court orders
#- 1.Temporary orders of injunction under Order 40 of the Civil Procedure Rules, subsisting for one year from the date of the ruling
- 2.Judgment on account of admission and in default entered against the defendants
- 3.Case to be listed for formal proof and plaintiff to comply with Order 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Kiriinya v William Mutuma Kimathi, Jeniffer Karambu, Salome Kanini, Naomi Kanyua, Estate of Mary Karimi, Estate of Rachel Kinyua, Estate of Lucy Kagwiria, Julius Mbaya, Tabitha Karoki Marete & Gladys Mwari (Environment & Land Case 67 of 2019) [2021] KEELC 745 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/745/eng@2021-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.