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ELCDismissedNot stated in extract· [2022] KEELC 220 (KLR)

Mambrui Sea Denus Limited & 2 others v Joseph Kasena Yeri & 12 others [2022] KEELC 220 (KLR)

Environment and Land Court
28 April 2022
JOJ. O. Olola
4,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused urgent protection for Mambrui landowners, ruling their 20-year delay and missing parties doomed their injunction application.

What this practically means

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Executive summary

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The Petitioners, proprietors of Portions No. 658 to 707 (Original No. 652/2-51) north of Mambrui Town, moved the court by Notice of Motion dated 16th December 2020 seeking conservatory orders restraining dealings with the Ngomeni Squatter Settlement Scheme register, a mandatory injunction compelling the 5th Respondent to remove a barbed wire fence, and a temporary injunction restraining the Respondents from dealing with their portions. They alleged that the scheme was created over their private land through an erroneous survey and unlawful adjudication in pretended exercise of powers under the Land Adjudication Act, without consultation or compensation, and that Respondents demolished their fences. The 1st, 3rd, 4th and 5th Respondents opposed, asserting the scheme was lawfully established in 1993, that notice was issued on 15th December 1995 requiring claims within 21 days, and that they received titles and letters of offer through due process, with due diligence on the part of purchasing Respondents. The court applied the Gatirau Peter Munya threshold for conservatory orders and declined to restrain the register, noting some 600 title-holders who are not parties would be prejudiced, and that the register has existed since 1999. It refused the mandatory injunction absent special circumstances per Kenya Breweries v Washington Okeyo, and refused the temporary injunction per Nguruman v Jan Bonde Nielsen, finding no urgency since the Petitioners knew of the alleged infringement in 1999 and did not join these Respondents in their 2004 suit. The application was dismissed with costs.

Key legal issues

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01

Whether the threshold for conservatory orders was met

Holding

The threshold was not met: affected title-holders are not parties, the register has been in place since 1999, and a conservatory order would not serve ordered functioning of public agencies

Reasoning

The court applied the four-pronged test for conservatory relief from Gatirau Peter Munya v Dickson Mwenda Kithinji. It found the scheme was established by the Government in 1993 with notice issued in 1995, that Petitioners never claimed, and that orders affecting some 600 non-party title-holders would be extremely prejudicial before those individuals are heard.

p. 6
02

Whether a mandatory injunction should issue to compel removal of the 5th Respondent's fence

Holding

No mandatory injunction issued because no special circumstances or clear case was demonstrated

Reasoning

The court adopted the Kenya Breweries v Washington Okeyo test that mandatory injunctions on interlocutory applications require special circumstances and are granted only in clear cases. It held the dispute over whether the adjudication followed proper procedure was a matter for trial and the circumstances were neither special nor clear.

p. 6
03

Whether a temporary injunction should issue restraining dealings with the Petitioners' portions

Holding

No temporary injunction issued; no prima facie case with urgency demonstrated against these Respondents

Reasoning

Applying Nguruman v Jan Bonde Nielsen, the court found the Petitioners knew of the alleged infringement in 1999 and sued others in 2004 while omitting these Respondents, who obtained titles through a government-established adjudication process. Absent evidence that the process was outside the law, restraint was unwarranted.

p. 6

Legal principles established

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  • Conservatory orders bear a public-law connotation and should be granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes.
  • A mandatory injunction should not be granted on an interlocutory application absent special circumstances and only in clear cases.
  • A party seeking an interlocutory injunction must show a clear and unmistakable right directly threatened, with material and substantive invasion and urgent necessity to prevent irreparable damage.

Court orders

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  1. 1.The Petitioners' Notice of Motion dated 16th December, 2020 is dismissed
  2. 2.Costs of the application to the Respondents (dismissed with costs)

Authorities

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Legislation

  • Land ActPart VIII
  • Land Adjudication ActNot specified

Cases cited (3)

  • Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others
    Supreme Court Application No. 5 of 2014 (2014) eKLR
  • Kenya Breweries Limited and Another -vs- Washington Okeyo
    (2002) 1 EA 109
  • Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court (Petition invoking Article 40 of the Constitution); interlocutory application by Notice of Motion

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, "Mambrui Sea Denus Limited & 2 others v Joseph Kasena Yeri & 12 others [2022] KEELC 220 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/220/eng@2022-04-28

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