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ELCDismissedMeru ELC Constitutional Petition (No. not stated in judgment)· [2022] KEELC 201 (KLR)

Lawrence Kanyi Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties) [2022] KEELC 201 (KLR)

Environment and Land Court
30 March 2022
4,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K. Nzili, ELC Judge) disposed of the petitioners' notice of motion dated 11.5.2021 seeking maintenance of status quo and a temporary injunction restraining the respondents from trenching, beaconing, blocking access, demolishing or evicting the petitioners from L.R Ngaremara/Gambella Adjudication Section L.R Nos. 27098 and 7019 in Tigania East, land the petitioners claim as Ameru community land of about 17,553 acres previously reserved for Meru Ranching Cooperative and the Nyambene National Reserve. The 3rd and 4th respondents and the 3rd interested party raised a preliminary objection contending that the matter is an intergovernmental land dispute requiring exhaustion under the Intergovernmental Relations Act and the Land Adjudication Act, and that the court cannot issue permanent injunctions against government departments. The court held the dispute is not intergovernmental, the County Government of Meru being a mere interested party and the real controversy being between two claimants to land. It found no adjudication section bar applied, noting the 1st and 2nd respondents held prima facie titles under Sections 25 and 26 of the Land Registration Act. It upheld the objection insofar as the application offended Section 16(1) of the Government Proceedings Act and Order 29 of the Civil Procedure Rules, which prohibit injunctions against government entities. The application was dismissed with costs, the status quo orders were vacated, and the parties were directed to comply with Order 11 and set down the petition for hearing within 60 days, with mention alongside Meru ELC Constitutional Petition No. E013 of 2021 on 10.5.2022. The substantive petition remains pending.

Key legal issues

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01

Whether the petition offends the exhaustion principle under the Intergovernmental Relations Act and the Land Adjudication Act

Holding

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.

Reasoning

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.

p. 6
02

Whether the land falls under an adjudication section such that proceedings are stayed without consent under the Land Adjudication Act

Holding

No - the petitioners admitted the respondents acquired title outside the adjudication process, and the titles displayed predate and sit outside any adjudication section.

Reasoning

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.

p. 6
03

Whether temporary injunction and status quo orders can issue against government departments

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Application dated 11.5.2021 dismissed with costs
  3. 3.Orders for status quo vacated
  4. 4.Parties to comply with Order 11 and set down the petition for hearing within 60 days
  5. 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

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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, "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.