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ELCDismissedNot stated in judgment· [2021] KEELC 2180 (KLR)

Kimitei Samoei v Michael Ngige & 2 others [2021] KEELC 2180 (KLR)

Environment and Land Court
18 August 2021
1,280 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odenty, J) determined an application dated 20th January 2021 by the 1st Respondent/applicant seeking a conservatory order preserving the suit land from being entered into, used or subjected to any dealings pending the hearing and determination of the main suit, which appears to concern adverse possession. Although counsel agreed to file written submissions, only the applicant did so, and the court noted that those submissions addressed adverse possession in the main suit rather than the criteria for conservatory orders. The court restated the principles for granting conservatory orders as drawn from the Supreme Court decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji and Nubian Rights Forum v Attorney General: the applicant must demonstrate an arguable prima facie case with likelihood of success and prejudice in the absence of the order; the grant or denial should enhance constitutional values; the substratum of the matter should not be rendered nugatory; and the public interest must be considered. The court held that the application did not meet this threshold because no evidence was led to establish the alleged dealings or threatened use of the suit land, which remained mere allegations. The application was accordingly dismissed with costs. The judgment is dated 18 August 2021, though the delivery line contains a typographical error.

Key legal issues

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01

Whether the threshold for grant of a conservatory order was met

Holding

The application failed to demonstrate a prima facie case; the allegations were mere allegations unsupported by evidence, and the application was dismissed with costs.

Reasoning

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.

p. 2
02

Distinction between interlocutory injunctions and conservatory orders

Holding

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.

Reasoning

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.

p. 1
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Relevance of the applicant's submissions

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The application dated 20th January 2021 seeking conservatory orders is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)(c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23

Cases cited (5)

  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others
    Supreme Court Application No. 5 of 2014 (2014) eKLR
  • Nubian Rights Forum & 2 others vs. Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae)
    Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR
  • Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others
    [2015] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 others
    High Court Petition No. 16 of 2011, Nairobi
  • Dattraj Nathuji Thaware v State of Maharashta, Indian & Others
    [2004] INSC 755 S.C 755 of 2004
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.