Lawrence Kanyi Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties) [2022] KEELC 201 (KLR)
The bottom line
#Kenya's courts cannot grant injunctions against the government, so land claimants must challenge state title through substantive proof, not interim restraining orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition offends the exhaustion principle under the Intergovernmental Relations Act and the Land Adjudication Act
Objection rejected - the dispute is not intergovernmental; the County Government of Meru is a mere interested party and no cross-petition was filed, so the dispute is between two claimants over land.
The court analysed the character of the parties. The petitioners are adult Kenyan citizens suing on their own behalf and for defined residents of Tigania East; the County Government is only a supporting interested party under Rule 7 of the Mutunga Rules. The respondents admitted owning and occupying the suit land, so the controversy concerns competing claims to land, not a dispute between government departments. The 3rd and 4th respondents had not even filed a response to the petition.
Whether the land falls under an adjudication section such that proceedings are stayed without consent under the Land Adjudication Act
No - the petitioners admitted the respondents acquired title outside the adjudication process, and the titles displayed predate and sit outside any adjudication section.
The court found nothing before it indicating the subject land falls within an adjudication section where proceedings would be stayed or require consent under Sections 8 and 30 of the Land Consolidation Act and Land Adjudication Act respectively. The respondents exhibited a lease certificate of title effective 1.11.2000 sealed on 14.10.2019 and a lease for Parcel No. 32634 effective 1.7.2018, which under Sections 25 and 26 of the Land Registration Act are prima facie evidence of ownership.
Whether temporary injunction and status quo orders can issue against government departments
No - Section 16(1) of the Government Proceedings Act and Order 29 Rules (2)(2)(3) of the Civil Procedure Rules forbid injunctions against the government; the preliminary objection on this limb was upheld and the application dismissed.
The notice of motion sought temporary injunctions against respondents who are government entities. Statutory prohibitions apply, consistent with Josaphat Karaine N'abatu and James Muigai Thungu. Further, the petitioners held no superior claim: the 1st and 2nd respondents held valid titles, the petitioners had not complained to the 2nd interested party or any statutory body over threatened eviction, and any loss had to be balanced against public interest and security considerations attaching to military land. This court in Meru ELC Constitutional Petition No. E013 of 2021 had already held the titles valid until impeached.
Legal principles established
#- No order of injunction may be made against the government or a government department, per Section 16(1) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules.
- A dispute between private/community claimants and government landholders is not an intergovernmental dispute under Articles 6(2) and 189 of the Constitution merely because multiple state organs are parties.
- Registered titles under the Land Registration Act are prima facie evidence of ownership until impeached.
Court orders
#- 1.Preliminary objection upheld in so far as the application dated 11.5.2021 is offensive to Order 29 of the Civil Procedure Rules and Section 16(1) of the Government Proceedings Act
- 2.Application dated 11.5.2021 dismissed with costs
- 3.Orders for status quo vacated
- 4.Parties to comply with Order 11 and set down the petition for hearing within 60 days
- 5.Petition to be mentioned alongside Meru ELC Constitutional Petition No. E013 of 2021 on 10.5.2022
- Jurisdiction invoked
- Articles 22, 23, 40, 47, 60, 162 of the Constitution (Environment and Land Court jurisdiction under a constitutional petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Kanyi Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties) [2022] KEELC 201 (KLR)", Case Analysis (2022). Meru ELC Constitutional Petition (No. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/201/eng@2022-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.