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ELCPartially AllowedNot stated in the judgment extract· [2021] KEELC 1590 (KLR)

Joshua K. Tanui & 8 others v Borop Multipurpose Co-operative Society Ltd & 2 others [2021] KEELC 1590 (KLR)

Environment and Land Court
14 October 2021
DOD. O. Ohungo
2,678 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court froze all dealings with disputed Mau Summit land because the owners' titles could not be cancelled while a court stay remained in force.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (D. O. Ohungo J) determines the petitioners' Notice of Motion dated 25 October 2019 seeking conservatory orders in a constitutional petition concerning parcels Mau Summit/Sachangwan Block 10/1-200. The petitioners, members of the 1st respondent co-operative society, asserted they were allocated and registered as proprietors of the parcels between 2006 and 2010, but that following a Co-operative Societies Tribunal dispute (Case No. 6 of 2010) to which they were not parties, the 2nd respondent published a gazette notice of cancellation of their titles and lodged a caveat without hearing them, violating their rights under Articles 29 and 40. The 1st respondent opposed, contending the titles were issued in violation of the tribunal's orders, that cancellation had already occurred, and that the petition was res judicata. The court set out the settled test for conservatory orders, applying the public law character of such orders as articulated in Judicial Service Commission v Speaker of the National Assembly and the Munya case. Finding that the titles had not in fact been cancelled because a stay order of 6 November 2019 remained in force, the court held the petitioners had established a prima facie case with a possibility of success and faced a real threat of infringement of their Article 40 property rights. A conservatory order preserving the suit properties pending hearing of the petition was granted, with costs of the application in the cause. The 2nd and 3rd respondents did not file submissions.

Key legal issues

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01

Prima facie case for conservatory orders

Holding

The petitioners established a prima facie case with a possibility of success because the cancellation of their titles had been stayed by a subsisting court order, exposing them to a real threat of infringement of their Article 40 right to property

Reasoning

The court noted that on 6 November 2019 counsel for the 1st respondent confirmed the titles had not yet been cancelled, prompting a stay of the intended annulment. Since that order remained in force, the 1st respondent's claim that titles were already cancelled was untenable. The petitioners therefore faced a real threat of losing their titles, satisfying the prima facie test and justifying preservation of the suit properties as the substratum of the petition.

p. 3
02

Effect of subsisting stay orders

Holding

A respondent cannot claim that the subject matter has already been cancelled where a stay order remains in force

Reasoning

The court found it contradictory for the 1st respondent to assert the titles had been cancelled when the order staying the cancellation was still operative. The pending status preserved the court's ability to grant relief, and the interests of justice required preserving the suit properties pending full determination of the petition.

p. 3

Legal principles established

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  • Conservatory orders are public law remedies aimed at preserving the subject matter of a dispute pending determination of the main petition
  • An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success and prejudice from the violation or threatened violation of the Constitution

Court orders

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  1. 1.A conservatory order restraining the respondents, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, compulsorily acquiring, erecting any structures, cancelling the title deeds or dealing in any way with the parcels known as Mau Summit/Sachangwan Block 10/1-200 pending the hearing and determination of the petition
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 29
  • Land Registration ActSection 25

Cases cited (6)

  • Mohansons (Kenya) Limited v Registrar of Titles & 2 others
    [2017] eKLR
  • Republic v Gathaite Farmers Co-operative Society Ltd & another ex-parte Richard Nganga Kamiro
    [2013] eKLR
  • Mavoloni Company Ltd vs Standard Chartered Estate Management Ltd
    Civil Application No. 266 of 1997
  • Willis Gitau Njoroge v Monica Wanjiku Gachie & another
    [2019] eKLR
  • Judicial Service Commission v. Speaker of the National Assembly & Another
    [2013] eKLR
  • Gitirau Peter Munya –v- Dickson Mwenda Kithinji & 2 Others
Jurisdiction invoked
Constitutional petition invoked under Articles 29 and 40 of the Constitution (protection of property and fair administrative action)

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, "Joshua K. Tanui & 8 others v Borop Multipurpose Co-operative Society Ltd & 2 others [2021] KEELC 1590 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1590/eng@2021-10-14

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