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ELCPartially AllowedNotice of Motion dated 15th April 2021 (main petition, Environment and Land Court, Migori)· [2021] KEELC 2379 (KLR)

John Ochieng Maricus v County Government of Migori & 2 others; Mwembe & Mwembe Associates & another (Interested Parties) [2021] KEELC 2379 (KLR)

Environment and Land Court
29 July 2021
5,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Migori halted construction on disputed land until trial, but refused to expand the case to a larger judicial bench.

What this practically means

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Executive summary

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The petitioner, administrator of the estate of Maricus Oseta Murama, moved the Environment and Land Court at Migori by Notice of Motion dated 15th April 2021 seeking conservatory orders restraining the respondents and interested parties from constructing on, alienating or interfering with parcel L.R. No. SUNA EAST 1/25900, and further seeking certification that the petition raised substantial questions of law warranting empanelment of an uneven-number bench under Article 165(4) of the Constitution. The petitioner asserted the deceased held a registered title to the suit land, and that the 1st and 2nd respondents, public bodies, had commenced construction of county headquarters and officials' residences without following the compulsory acquisition procedures under Article 40 and Sections 107–133 of the Land Act. The 1st and 2nd respondents countered that the land was public utility land alienated in the 1970s, never degazetted, and that the suit was statute-barred under Section 7 of the Limitation of Actions Act. The court framed two issues. On conservatory relief, applying Article 23(3), Mrao, CREAW and the Munya decision, it found a prima facie case with real danger of prejudice and granted the injunction, additionally restraining the petitioner from sub-dividing or selling the suit land. On empanelment, applying Itolondo, Kinyanjui, Oparanya and Omtatah Okoiti, it held that the matters were familiar land-acquisition issues of private character, without legal uncertainty or demonstrated general public impact, and declined certification, dismissing that prayer. The Notice of Motion partially succeeded; costs were in the cause and the matter was directed to be given a priority hearing date.

Key legal issues

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01

Whether conservatory orders pending petition were warranted

Holding

Conservatory orders granted; construction would have far-reaching consequences and the petitioner's alleged fundamental rights would be violated absent protection

Reasoning

The court analysed only the pleadings, not the merits. Citing Article 23(3), Mrao, CREAW and the Munya decision, it found the petitioner alleged weighty, arguable constitutional issues regarding unlawful compulsory acquisition of titled land and real danger of prejudice. Conservatory orders protect public good against public bodies and the court may grant interim preservation orders under Section 13(7)(a) of the ELC Act.

p. 5
02

Whether the petition should be certified for empanelment of an uneven-number bench under Article 165(4)

Holding

Refused; the issues, though involving compulsory acquisition, are familiar, settled in law and of private rather than general public nature

Reasoning

Section 21 of the ELC Act makes single-judge hearing the rule, empanelment the exception. Applying Itolondo, Kinyanjui, Oparanya and Omtatah Okoiti, the court held that complexity or public interest alone does not compel certification. There is no uncertainty of law on compulsory acquisition, and the petitioner did not demonstrate how residents of Migori County generally would be affected. Judicial independence dispels fears of bias.

p. 7

Legal principles established

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  • Conservatory orders bear a public law character and are granted on the merits of the case bearing in mind public interest and constitutional values
  • Certification under Article 165(4) is discretionary; novelty or complexity alone does not warrant empanelment of a bench
  • A prima facie case for conservatory relief need not be a case which must succeed at the hearing

Court orders

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  1. 1.Conservatory order by way of injunction restraining the Respondents and Interested Parties from continuing or commencing construction, digging trenches, creating access roads, leasing, alienating or otherwise interfering with the petitioner's beneficial use and quiet enjoyment of L.R. No. SUNA EAST 1/25900 pending hearing of the main petition
  2. 2.Petitioner and his agents prohibited from further subdivisions, sale or charging of the suit land or parcels arising from subdivision
  3. 3.In Charge of the Environmental and Land Court Registry directed to issue a hearing date on a priority basis in the new term
  4. 4.Costs in the cause
  5. 5.Prayer for empanelment of a bench of an uneven number of judges dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3), 24, 27(1), 40, 159(2)(a), 162(2), 162(3), 165(3)(b), 165(4)
  • Land Registration Act, 2012Sections 24, 25, 26
  • Land ActSections 107 to 133
  • Land Acquisition Act (repealed)Section 3
  • Environment and Land Court ActSections 13(2), 13(7)(a), 21
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSections 1A, 1B

Cases cited (15)

  • United States International University vs Attorney General and 2 Others
    (2012) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General
    (2011) eKLR
  • Kevin K. Mwiti & Others v Kenya School of Law & Others
    (2015)
  • Gitirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Others
    (2014) eKLR
  • Ogada vs Mollin
    (2009) KLR 620
  • Republic v President & 5 others Ex-parte Wilfrida Itolondo & 4 others
    [2013] eKLR
  • Harrison Kinyanjui v Attorney General & another
    [2012] eKLR
  • Wycliffe Ambetsa Oparanya & 2 others vs Director of Public Prosecutions & another
    [2016] eKLR
  • Chunilal V. Mehta vs Century Spinning and Manufacturing Co.
    AIR 1962 SC 1314
  • Santosh Hazari vs Purushottam Tiwari
    (2001) 3 SCC 179
  • Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others
    (2017) eKLR
  • Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone
    [2013] eKLR
  • Republic vs Independent Electoral and Boundaries Commission & 3 others Exparte Wavinya Ndeti
    (2017) eKLR
  • Masalu and Others vs. Attorney General
    (2005) 2 EA 165
Jurisdiction invoked
Articles 22, 23, 162(2)(b) and 165(3)(b) of the Constitution; Environment and Land Court Act

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, "John Ochieng Maricus v County Government of Migori & 2 others; Mwembe & Mwembe Associates & another (Interested Parties) [2021] KEELC 2379 (KLR)", Case Analysis (2021). Notice of Motion dated 15th April 2021 (main petition, Environment and Land Court, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2379/eng@2021-07-29

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