Kimitei Samoei v Michael Ngige & 2 others [2021] KEELC 2180 (KLR)
The bottom line
#A Kenyan court refused to protect disputed land because the applicant offered only allegations, not evidence — proof matters when asking for conservatory orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for grant of a conservatory order was met
The application failed to demonstrate a prima facie case; the allegations were mere allegations unsupported by evidence, and the application was dismissed with costs.
The court restated the four principles from Gatirau Peter Munya and the Nubian Rights Forum case: arguable prima facie case with likelihood of success and prejudice if not granted; enhancement of constitutional values; whether denial renders the substratum nugatory; and public interest. The applicant filed submissions addressing adverse possession (the main suit) rather than the conservatory order application, and led no evidence supporting the alleged dealings, so the threshold was not met.
Distinction between interlocutory injunctions and conservatory orders
Conservatory orders bear a public-law connotation and are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes, unlike private-law injunctions based on irreparable harm and probability of success.
Relying on the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court noted that injunctions belong to the sphere of civil claims issued on convenience and balance of probabilities, while conservatory orders facilitate ordered functioning of public agencies and uphold the court's adjudicatory authority in the public interest, and are granted on the inherent merits of the case.
Relevance of the applicant's submissions
The applicant's submissions, which addressed adverse possession in the main suit rather than the application for conservatory orders, did not address why conservatory orders should be granted.
Only the applicant filed submissions despite counsel agreeing to file written submissions. Those submissions addressed adverse possession, which pertains to the main suit, not the interlocutory application for conservatory orders. The court therefore found the submissions unhelpful to the question before it, contributing to the failure to establish the threshold for the relief sought.
Legal principles established
#- The principles for granting conservatory orders are: an arguable prima facie case with likelihood of success and prejudice absent the order; enhancement of constitutional values; whether the substratum will be rendered nugatory; and public interest.
- Allegations unsupported by evidence cannot sustain an application for conservatory orders.
Court orders
#- 1.The application dated 20th January 2021 seeking conservatory orders is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction to grant conservatory orders pending hearing of the main suit; conservatory orders under Article 23(3)(c) of the Constitution and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, as discussed
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lone Tree Limited v Water Resources Authority (Petition E031 of 2021) [2022] KEELC 3311 (KLR)[2022] KEELC 3311 (KLR)9 Jun 2022
Cite this brief
#Cite this brief
Caselaw, "Kimitei Samoei v Michael Ngige & 2 others [2021] KEELC 2180 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2180/eng@2021-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.