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Case Brief · caselaw.co.ke
ELCPartially AllowedConstitutional Petition dated 25.2.2021 (notice of motion of even date)· [2021] KEELC 2018 (KLR)

Dominic Kioko Mutua v Elizabeth Muthina Makarai & 4 others [2021] KEELC 2018 (KLR)

Environment and Land Court
28 July 2021
917 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a squatter from eviction and forced disclosure of settlement records, but refused to stop his criminal case.

What this practically means

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Executive summary

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The petitioner, claiming to be a genuine and bona fide squatter occupying land parcel Taita Taveta/Ziwani Phase 1 Scheme/590, contended that the parcel formed part of 2000 acres donated out of Gicheha farm for a settlement scheme, but that the 1st respondent had fraudulently been registered as owner. Alongside his constitutional petition dated 25.2.2021, he sought interim relief: an order compelling the 3rd respondent to provide the enumeration list and register of squatters for the scheme, a conservatory order restraining eviction or interference with his occupation, a temporary injunction against the 1st respondent dealing with the plot, and a stay of criminal proceedings in Taveta Law Courts MCCR/E095/2020 (Republic vs Dominic Kioko Mutua). Service was effected; the 1st and 4th respondents filed no response and the 2nd, 3rd and 5th respondents did not oppose. The court found the facts largely uncontroverted. It granted prayers (e), (f) and (g): the enumeration list and register must be provided, and both the conservatory order and temporary injunction were issued to preserve the status quo pending hearing of the petition. However, the court declined to stay the criminal proceedings, holding that the 4th respondent was exercising its constitutional and statutory mandate, that no abuse or collateral purpose was demonstrated, and that the petitioner could still absolve himself in the criminal court. The application was allowed in part with costs in the cause.

Key legal issues

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01

Preservation of the suit property pending determination of the petition

Holding

Conservatory order and temporary injunction granted because the applicant resides on the suit property and only has an apprehension that it may change character by charge or transfer

Reasoning

The application was unopposed, with no replying affidavit or submissions by any respondent, so the facts remained largely uncontroverted. The court was satisfied that interim relief was warranted to preserve the status quo and protect the suit property from changing character while the petition was pending.

p. 2
02

Whether criminal proceedings should be stayed

Holding

Stay declined; the 4th respondent was exercising its constitutional and statutory mandate and no abuse or violation was demonstrated

Reasoning

The petitioner failed to demonstrate how his rights and freedoms had been impeded or put at risk. The 4th respondent was vindicating the offence of causing disturbance likely to cause a breach of peace. In the absence of a demonstration that the prosecution exceeded its mandate or pursued a collateral purpose, the court would not interfere, and the petitioner retains the opportunity to absolve himself in the criminal court.

p. 2
03

Disclosure of the enumeration list and register of squatters

Holding

Granted as a reasonable request to enable a just determination, particularly absent any replying affidavit by the 3rd respondent

Reasoning

The court considered the request reasonable because the enumeration list and register of squatters would assist it in reaching a just determination of the matter, especially given that the 3rd respondent filed no replying affidavit.

p. 2

Legal principles established

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  • A court should not curtail the constitutional and statutory mandate of a prosecuting authority absent demonstration of abuse of mandate or a collateral purpose, particularly where the petitioner still has the opportunity to absolve himself in the criminal court

Court orders

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  1. 1.Conservatory order restraining the respondents, their agents and servants from evicting, removing or interfering with the petitioner's occupation, possession and use of Taita Taveta Ziwani Phase 1 Scheme/590 pending hearing and determination of the constitutional petition (prayer f)
  2. 2.Temporary injunction restraining the 1st respondent and her servants or agents from trespassing, entering, farming, disposing, leasing, charging or otherwise dealing with or interfering with the petitioner's occupation and/or possession of plot 590/Ziwani Phase 1 Scheme/Taita Taveta pending hearing and determination of the petition (prayer g)
  3. 3.Order that the 3rd respondent provide the petitioner the enumeration list and register of squatters entitled to land on Taita Taveta Ziwani Phase 1 Scheme (prayer e)
  4. 4.Costs of the application to be in the cause
Jurisdiction invoked
Constitutional petition (the judgment does not cite a specific constitutional or statutory provision)

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, "Dominic Kioko Mutua v Elizabeth Muthina Makarai & 4 others [2021] KEELC 2018 (KLR)", Case Analysis (2021). Constitutional Petition dated 25.2.2021 (notice of motion of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2018/eng@2021-07-28

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