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ELCAllowedNot stated in the extract (Notice of Motion dated 29th December 2020 in a Petition)· [2021] KEELC 1879 (KLR)

Navinchandra Laiji Shah & another v County Governmemt of Kisumu & another; Kisumu City Board (Interested Party) [2021] KEELC 1879 (KLR)

Environment and Land Court
23 September 2021
AOANTONY OMBWAYO
3,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kisumu court stopped the County Government from evicting or demolishing property owned by two landowners until their constitutional petition is fully heard.

What this practically means

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Executive summary

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This is a ruling on the Petitioners' Notice of Motion dated 29th December 2020 seeking a temporary injunction and conservatory orders restraining the County Government of Kisumu and the City Manager from trespassing on, evicting them from, or demolishing developments on fourteen parcels of land (L.R. Nos. Kisumu Municipality/Block 10/503-515 and 10/517) pending the hearing of their petition. The Petitioners, who acquired the properties through subdivision of an original title (L.R. No. Kisumu Municipality/Block 10/105), deposed that they had paid rates and land rent faithfully, obtained change of user, and were threatened with forced eviction and demolition after the County published development plans designating the area as public property. The Respondents contended that the original title was irregularly and unprocedurally appropriated from public land under the Government Lands Act, with no allotment letter, PDP or application produced. Interim orders had been granted ex parte on 30th December 2020. Applying the tests for conservatory orders from the Munya and George Odero authorities, Antony Ombwayo J found the Petitioners had demonstrated a prima facie case, noting that the Respondents' allegations of illegality were unsubstantiated and that the County had itself accepted rates from the Petitioners. The court allowed the application, issued a temporary injunction preserving the status quo over all fourteen parcels pending the hearing and determination of the petition, and ordered costs of the application to be in the cause. The ruling was delivered electronically under COVID-19 directives.

Key legal issues

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01

Whether the Petitioners established a prima facie case entitling them to a conservatory order

Holding

Yes - the Petitioners demonstrated legal acquisition of the suit properties, issuance of Certificates of Lease, and consistent payment of rates and land rent; the Respondents' allegations of illegality were mere allegations not substantiated.

Reasoning

The court found the Petitioners produced documents showing acquisition from Hasmukhrai Gosar Shah and his brothers, transfer, registration and issuance of a Certificate of Lease, plus payment of rates and rent. The Respondents alleged irregular appropriation under the Government Lands Act but failed to demonstrate the particulars of illegality. The court noted that if the property were illegally acquired, the County would not have demanded and accepted rates from the Petitioners.

p. 6
02

Whether the balance of convenience/prejudice favoured preservation of the status quo

Holding

Yes - the Petitioners faced threatened repossession and demolition of property valued at Kshs. 600,000,000; evidence would be tested at full hearing, warranting interim protection.

Reasoning

The court observed that the Petitioners had enjoyed quiet and peaceful possession since acquiring the Certificate of Lease, and that the Respondents had designated the properties as public land in the development plans without responding to the Petitioners' objection. Since the evidence would be tested at full hearing, interim restraint was justified to preserve the substratum of the petition.

p. 6

Legal principles established

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  • An applicant for a conservatory order must demonstrate a prima facie case, likely prejudice absent the order, and that it is in the public interest to grant the order.
  • Conservatory orders bear a public law connotation and are granted on the inherent merit of a case, bearing in mind public interest and constitutional values, unlike interlocutory injunctions.

Court orders

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  1. 1.Pending the hearing and determination of the petition, a temporary injunction restraining the Respondents from trespassing upon, interfering with, evicting, demolishing or otherwise interfering with the Petitioners' use and possession of L.R. Nos. Kisumu Municipality/Block 10/503-515 and 10/517
  2. 2.Costs of the Application to be in the cause

Authorities

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Legislation

  • Government Lands Act (GLA)sections 3, 9-13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rule 23

Cases cited (2)

  • George Odero vs. Lake Victoria Environment Programme & 3 others
    [2015] eKLR
  • Gatirau Peter Munya –vs- Dickson Mwenda Kithinji and 2 others
    Application No. 5 of 2014, [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and freedoms); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 23

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, "Navinchandra Laiji Shah & another v County Governmemt of Kisumu & another; Kisumu City Board (Interested Party) [2021] KEELC 1879 (KLR)", Case Analysis (2021). Not stated in the extract (Notice of Motion dated 29th December 2020 in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1879/eng@2021-09-23

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