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ELCDismissedPetition (Notice of Motion dated 3rd May, 2021)· [2022] KEELC 760 (KLR)

Joseph Mutuku Kalii & 2502 others v National Land Commission & 4 others [2022] KEELC 760 (KLR)

Environment and Land Court
16 March 2022
6,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop eviction proceedings on disputed Makueni land, ruling that claims of historical injustice and customary title must be fully proven at trial, not assumed at the outset.

What this practically means

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Executive summary

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The Petitioners, Mamukii Society, a registered society of about 2500 members of the Akamba community, moved the court by Notice of Motion dated 3rd May 2021 under Articles 22 and 23(3) of the Constitution seeking conservatory orders restraining their eviction from, and interference with their occupation of, LR No. 1748 Kiu (Stanley and Sons Ltd Farm), an injunction restraining the 5th Respondent from selling, alienating or fencing the land, and an order that the Petition be heard by a three-judge bench on a priority basis. The Petitioners claim indigenous customary title held by their forefathers from time immemorial, allegedly expropriated by the Colonial Government and granted to Robin Woodcraft Stanley in 1948, amounting to a historical injustice under Article 67(2)(d). The 4th Respondent (Makueni County Government) contended the land is not community land, being registered to the 5th Respondent, while the 5th Respondent asserted an indefeasible title under Section 26(1) of the Land Registration Act, denied the Petitioners' occupation, and raised abuse of process on account of a pending suit, Makueni ELC No. 8 of 2020. Applying the principles for conservatory orders from Gatirau Peter Munya and related authorities, the court held the Petitioners had not established a prima facie case, that such issues of customary title and historical injustice fall for determination at full trial, and that the Applicants, not being in occupation, would suffer no prejudice. Certification for a three-judge bench was refused because the Petition involves only the Petitioners' private interest and empanelment jurisdiction lies with the Chief Justice under Section 21 of the ELC Act. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicants established a prima facie case for conservatory orders on their historical injustice claim

Holding

They did not; the disputed issues of customary occupation, dispossession and historical injustice can only be determined at a full trial, and the suit land is admittedly registered in the 5th Respondent's name

Reasoning

The court noted it must avoid definitive findings at the interlocutory stage. Although the Petition raises arguable issues on the legitimacy of the title granted in 1948, the Applicants admitted the 5th Respondent's registration and offered no evidence of current occupation. Determining the customary title and historical injustice claims would amount to deciding the Petition itself at the interlocutory stage.

p. 7
02

Whether denial of conservatory orders would prejudice the Applicants

Holding

No prejudice was shown since the Applicants are not in occupation of the suit property

Reasoning

The Applicants' own pleadings and annexures showed they were displaced and living along the Konza–Sultan Hamud railway line. Their claim of ongoing violation rests on historical injustice, a substantive matter not provable at the interlocutory stage. As they are not in occupation, no live prejudice would flow from declining the orders.

p. 7
03

Whether the Petition should be certified for hearing before a three-judge bench under Article 165(4)

Holding

No; the Petition concerns the Applicants' private interest in the suit land, not a substantial question of law of general public importance

Reasoning

Certification requires a question affecting the parties and transcending the case with significant public-interest bearing, plus a state of uncertainty in the law. The court found the Petition involves only the Petitioners' interest in the suit land, and that jurisdiction to empanel an uneven-number bench under Section 21 of the ELC Act rests with the Chief Justice, not the trial court.

p. 8

Legal principles established

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  • Conservatory orders are constitutional remedies in rem meant to preserve the subject matter of the dispute rather than ordinary civil remedies between individuals
  • An applicant for a conservatory order must show a prima facie case with likelihood of success, real danger of prejudice, risk of the petition being rendered nugatory, and public interest
  • A court determining an application for conservatory orders must not make definitive findings of fact or law on the substantive dispute
  • An Environment and Land Court is properly constituted by a single judge; certification of a substantial question of law for empanelment of an uneven number of judges is vested in the Chief Justice

Court orders

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  1. 1.The Petitioners' Notice of Motion dated 3rd May 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(5), 6, 22, 23(3), 27, 40, 67(2)(d), 165(3)(b), 165(4)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 3 and 24
  • Civil Procedure ActSection 6
  • Community Land Act(general reference)
  • Land Registration ActSection 26(1)
  • Registration of Titles Act (repealed)Section 23(1)
  • Land Act(general reference)
  • Environment and Land Court ActSection 21(1) and (2)
  • Crown Lands Ordinance, 1915(general reference)

Cases cited (25)

  • Platinum Distillers Ltd Vs Kenya Revenue Authority
    High Court Petition No. 83 of 2019
  • Centre for Rights, Education and Awareness (CREAW) & 7 Others Vs Attorney General
    Nairobi High Court Petition No. 16 of 2011
  • Giella Vs Cassman Brown Co Ltd
    1973 E.A. 358
  • Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Nguruman Ltd Vs Jan Boden Nielsen & 2 Others
    (2014) eKLR
  • Board of Management of Uuru Secondary School Vs City County Director of Education & 2 Others
    (2015) eKLR
  • Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Charlse Karathe & 2 Others Vs Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others
    (2013) eKLR
  • Dr Joseph Arap Ngok Vs Justice Moijo Ole Keiwua & 5 Others
    Civil Appeal No. 60 of 1997
  • Henry Wambega & 733 Others Vs Attorney General & 9 Others
    (2020) eKLR
  • Federation of Women Lawyers (FIDA Kenya) & 4 Others Vs The Attorney General & 2 Others
    (2016) eKLR
  • Parkie Stephen Munkasia & Others Vs Kedana Ranch
    (2018) eKLR
  • Charo Kazungu Mathere & 273 Others Vs Kencent Holdings Ltd & Another
    (2012) eKLR
  • John Kipkemboi Lelei Vs Eluid Kones Kiprono
    (2012) eKLR
  • Judicial Service Commission Vs Speaker of the National Assembly & Another
    (2013) eKLR
  • Wilson Kaberia Nkunja Vs Magistrates and Judges Vetting Board and Another
    Nairobi High Court Constitutional Petition No. 154 of 2016
  • Kevin K Mwiti & Others Vs Kenya School of Law & Others
    (2015) eKLR
  • Kenya Association of Manufacturers & 2 Others Vs Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others
    (2017) eKLR
  • Centre for Rights Education & Awareness (CREAW) & Another Vs Speaker of the National Assembly & 2 Others
    (2017) eKLR
  • Sir Chuntilal Vs Mehta and Sons Ltd Vs The Century Spinning and Manufacturing Co. Ltd
    1962 AIR 1314
  • Omikya Omtatah Okoiti & Another Vs Ann Waiguru – Cabinet Secretary, Devolution and Planning & 3 Others
    (2017) eKLR
  • Hermanus Phillipus Steyn Vs Giovanni Gnechi-Ruscone
    (2013) eKLR
  • Maina Kiai & 2 Others Vs Independent Electoral and Boundaries Commission & Another
    (2017) eKLR
  • Safepack Limited Vs Henry Wambega & Others
    Mombasa CA Civil Appeal No. 8 of 2019
  • Chief Land Registrar & 4 Others Vs Nathan Tirop Koech & 4 Others
Jurisdiction invoked
Articles 22 and 23(3) of the Constitution of Kenya 2010; Article 165(3)(b)

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, "Joseph Mutuku Kalii & 2502 others v National Land Commission & 4 others [2022] KEELC 760 (KLR)", Case Analysis (2022). Petition (Notice of Motion dated 3rd May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/760/eng@2022-03-16

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