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ELCDismissedPetition dated 7th May 2021 (ELC Petition, Mombasa)· [2022] KEELC 372 (KLR)

Pascal Mwaringa Mae v Jackson Kasisa Musango & 11 others [2022] KEELC 372 (KLR)

Environment and Land Court
4 April 2022
LNL. L. Naikuni
4,542 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to freeze land adjudication decisions in a private ownership dispute, ruling that conservatory orders are constitutional remedies reserved for cases with a public interest element.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) disposed of a Notice of Motion dated 7th May 2021 filed by the Petitioner, Pascal Mwaringa Mae, in an ongoing constitutional petition. The Petitioner sought conservatory and prohibitory orders staying the decision and orders of the Adjudication Committee of 22nd August 2014 (which replaced his name with that of the 1st Respondent over Plot No. 2097, Mwanda/Mbalamweni Adjudication Section) and barring issuance of title deeds to the 1st to 9th Respondents pending the hearing of the Petition. He alleged violations of his rights to fair administrative action, access to justice and fair hearing under Articles 47, 48 and 50, and of his right to property. The Respondents opposed, arguing the Petitioner had not exhausted the dispute-resolution mechanisms under the Land Adjudication Act, had abandoned an appeal to the Arbitration Board, and had previously filed a Malindi suit which was dismissed for want of prosecution. The court framed one issue: whether conservatory orders could issue and who should bear costs. Applying Sakwa, the Centre for Human Rights and Democracy, Munya and JSC v Speaker of the National Assembly, the court held that conservatory orders are public-law remedies in rem granted on inherent merit and public interest; this dispute was purely private with no public interest dimension, the Petitioner did not bring himself within Article 22, and mere non-compliance by a public authority does not amount to a human-rights violation. The application was dismissed with costs and the main Petition was directed to be heard on 22nd September 2022 and determined within ninety days. The disposition contains an internally inconsistent costs order.

Key legal issues

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01

Whether the Petitioner established a prima facie case with likelihood of success and real danger of prejudice

Holding

The application fails because the dispute is purely private, with no public interest, and the Petitioner did not plead violations of rights of other persons within the Bill of Rights

Reasoning

The court applied the tests for conservatory orders from Sakwa and the Centre for Human Rights and Democracy case: prima facie case with likelihood of success plus real danger of prejudice, weighed against public interest. Since the dispute concerns private ownership of land between private persons, conservatory orders grounded in public-law values were inappropriate; the Petitioner was better placed seeking interlocutory injunctions under Order 40.

p. 6
02

Whether conservatory orders could issue on an application brought under Order 40 of the Civil Procedure Rules

Holding

No; conservatory orders cannot be sought through the interlocutory injunction procedure under Order 40

Reasoning

The court distinguished conservatory orders from temporary injunctions, relying on Munya v Kithinji and JSC v Speaker of the National Assembly. Conservatory orders bear a public-law connotation and are remedies in rem under the Constitution, whereas Order 40 injunctions are private-law remedies in personam.

p. 5

Legal principles established

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  • Conservatory orders are constitutional remedies in rem granted on inherent merit bearing in mind public interest and constitutional values, not private-law interlocutory injunctions
  • An applicant for conservatory orders under Article 23 must bring himself within Article 22 by pleading and establishing on a prima facie basis a violation or threatened violation of rights in the Bill of Rights
  • Mere non-compliance with the law by a public authority does not necessarily amount to violation of fundamental rights and freedoms; ordinary remedies exist for unlawful administrative action

Court orders

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  1. 1.The Notice of Motion application dated 7th May 2021 is dismissed with costs to the 1st to the 9th Respondents
  2. 2.The main Petition dated and filed on 7th May 2021 to be fixed for hearing on 22nd September 2022 and to be determined within ninety (90) days by viva voce evidence and affidavits
  3. 3.The costs of this application to be borne by the Petitioner

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)(a),(b),(c)
  • Constitution of KenyaArticles 22, 47, 48, 50
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 4(1)
  • Environment and Land Court Act, No. 19 of 2011Section 13(7)
  • Land Adjudication Act, Cap. 287Section 30(1)
  • Land Registration ActSections 15 and 26

Cases cited (4)

  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another
    [2016] eKLR
  • The Centre for Human Rights and Democracy & Others v The Judges and Magistrates Vetting Board & Others
    Eldoret Petition No. 11 of 2012
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & Another
    [2013] eKLR
Jurisdiction invoked
Article 23(3)(a), (b) and (c) of the Constitution of Kenya; Order 40 Rules 1 and 4(1) Civil Procedure Rules, 2010; Section 13(7) 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, "Pascal Mwaringa Mae v Jackson Kasisa Musango & 11 others [2022] KEELC 372 (KLR)", Case Analysis (2022). Petition dated 7th May 2021 (ELC Petition, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/372/eng@2022-04-04

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