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ELCPartially AllowedJudicial Review Application dated 25/09/2020 (Petition), Meru· [2021] KEELC 2489 (KLR)

Diocese of Meru- Registered Trustees v Kenya Tea Development Agency Limited & 9 others;County Government of Meru & another (Interested Parties) [2021] KEELC 2489 (KLR)

Environment and Land Court
21 July 2021
LMLucy N. Mbugua
2,840 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court froze land dealings in a children's home dispute but declined broader protections, ruling ownership questions must wait for full trial.

What this practically means

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Executive summary

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The petitioner, Poor Hands Maids of Jesus Christ - Registered Trustees, trustees operating St. Joseph Children's Home, moved the Environment and Land Court at Meru by an application dated 25/09/2020 under constitutional and statutory provisions, seeking inhibition and conservatory orders over land parcel NKUENE/MITUNGUU/190 (about 100 acres, subdivided into parcels 1967-1975), and a stay or transfer for consolidation of the proceedings in Nkubu ELC No. 46 of 2020. The petitioner claimed it was allowed occupation of 15 acres (later about 19 acres) by the defunct County Council of Meru around 2007-2008, and that the respondents fraudulently subdivided and registered themselves as owners of public land. The 1st respondent (KTDA Holdings) countered that the land had been leased to three tea factory companies in 2005, was duly reserved and allotted to it in 2011, and that the mother title had been subdivided back in 2002, so no allocation to the petitioner was possible. The 2nd and 3rd respondents claimed parcels 1967 by gift and denied interest in parcel 1975. The court, per Hon. L.N. Mbugua, ELC Judge, held that competing claims of ownership and allegations of fraud required a full trial, refused conservatory orders and the stay/transfer of the Nkubu matter, but allowed inhibition under Section 68 of the Land Registration Act to preserve the suit property pending determination of the petition. Costs were to abide the outcome of the suit.

Key legal issues

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01

Whether conservatory orders should issue

Holding

Conservatory orders refused as substantive ownership and land-classification questions require a full trial

Reasoning

The parties advance competing claims of ownership by allocation from a former county council, and the applicant challenges the respondents' titles as fraudulent. Such issues require tendering of evidence at trial. It is also unclear whether the applicant litigates for the public, a community, or to protect private property. Conservatory orders were therefore not merited at this interlocutory stage.

p. 4
02

Whether an order of inhibition should issue

Holding

Inhibition granted to preserve the suit property pending determination of the petition

Reasoning

Under Section 68(1) of the Land Registration Act the court has discretion to inhibit registration of dealings on land to preserve property from acts that would render a court order incapable of execution, or to allow the matter to be heard and decided. The court was inclined to allow that prayer.

p. 4
03

Whether the Nkubu proceedings should be stayed or transferred

Holding

Stay and transfer refused

Reasoning

Though the ELC exercises supervisory jurisdiction over magistrates' courts, it should not arbitrarily interfere with or choke proceedings there save on appeal or transfer applications. The applicant feared eviction but had not first sought stay in the lower court, and the public interest element was not clearly advanced.

p. 4

Legal principles established

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  • Conservatory orders are granted on inherent merit bearing in mind the public interest, constitutional values and proportionate magnitudes, unlike interlocutory injunctions
  • An inhibition under Section 68 of the Land Registration Act bars the registered owner from registering transactions over disputed property until the suit is disposed of

Court orders

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  1. 1.An order of inhibition issued over land parcel No. NKUENE/MITUNGUU/190 (subdivided into parcels 1967-1975) restraining any dealings pending hearing and determination of the petition
  2. 2.The other prayers (conservatory orders, stay and transfer of the Nkubu proceedings) declined
  3. 3.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 20, 21, 22, 23, 28, 29, 40, 47, 53, 61, 63, 64, 65, 66, 67, 159, 162(2)(b), 165(6), 167(7)
  • Land Registration Act 2012Section 68(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 4, 13, 23, 24(1)
  • Civil Procedure Act (Cap 21)Sections 1, 1A, 3, 3A, 18(1)
  • Civil Procedure RulesOrder 40 rules 1 & 2
  • Societies Actnot specified

Cases cited (2)

  • Gatirau Peter Munya vs Dickson Mwendwa Kithinji and 2 Others
    [2014] eKLR
  • Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others
    [2015] eKLR
Jurisdiction invoked
Articles 20, 21, 22, 23, 162(2)(b) and 165(6) of the Constitution; Section 68 of the Land Registration Act 2012

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, "Diocese of Meru- Registered Trustees v Kenya Tea Development Agency Limited & 9 others;County Government of Meru & another (Interested Parties) [2021] KEELC 2489 (KLR)", Case Analysis (2021). Judicial Review Application dated 25/09/2020 (Petition), Meru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2489/eng@2021-07-21

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