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ELCDismissedConstitutional Petition No. E009 of 2021· [2022] KEELC 824 (KLR)

James Yator Kisang v Land Adjudication Officer Elgeyo Marakwet & 3 others [2022] KEELC 824 (KLR)

Environment and Land Court
10 March 2022
EOE. O. Obaga
1,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid for an interim injunction, holding he had already been heard at every level of the land adjudication process.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (E. O. Obaga, J) determined a Notice of Motion dated 2nd August 2021 and a preliminary objection dated 15th September 2021 in a constitutional petition by James Yator Kisang. The Petitioner alleged violation of his property rights under Article 40(2) of the Constitution in respect of Parcel No. 2518, Chesoi Adjudication Section, Elgeyo Marakwet. He sought an interim temporary injunction restraining the Respondents from interfering with the suit property pending the hearing of the petition. The 3rd and 4th Respondents objected that the injunction was not grounded in the petition, that the application was an abuse of process, and that there was no threat of sale. The background was a land adjudication dispute: the parcel was recorded in the Petitioner's name, but the Adjudication Committee, the Adjudication Officer and the Minister on appeal (Appeal No. 540 of 2020) all ruled against him; his father had also litigated a related claim over the original parcel 2972 in Iten RMCC Civil Case No. 46 of 2005 and lost. The court applied the Supreme Court's guidance in the Munya case and CREW, holding that in constitutional petitions relief takes the form of conservatory orders and the interlocutory injunction thresholds do not apply, and that a party must demonstrate a prima facie case with likelihood of success. Finding that the Petitioner had been heard at every stage and that the dispute had already been litigated, the court held he had no prima facie case and dismissed the application with costs to the 3rd and 4th Respondents.

Key legal issues

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Whether the Petitioner was entitled to a temporary injunction/conservatory order pending the hearing of the constitutional petition

Holding

No; the Petitioner failed to establish a prima facie case with probability of success warranting conservatory orders

Reasoning

The court held that in constitutional petitions the Civil Procedure Rules do not apply and the interlocutory injunction threshold does not govern; what is sought are conservatory orders. Applying the Munya and CREW tests, the Petitioner was required to show a prima facie case with likelihood of success and real danger of prejudice. The material showed he was heard at every stage of the adjudication process, including the Minister's appeal, and the dispute had already been litigated by his father in the Resident Magistrate's Court. He therefore had no prima facie case.

p. 3

Legal principles established

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  • In constitutional petitions, injunctive relief cannot be sought through an application if the specific remedy is not pleaded in the petition; the appropriate orders are conservatory in nature
  • Conservatory orders are granted on the inherent merits of a case, bearing in mind the public interest and constitutional values, not on private-law interlocutory injunction thresholds

Court orders

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  1. 1.The Petitioner's Notice of Motion dated 2nd August 2021 seeking a temporary injunction was dismissed with costs to the 3rd and 4th Respondents
Jurisdiction invoked
Articles 20, 21, 22, 23, 40(2)(a), 50(1) and 165(3)(a) of the Constitution of Kenya 2010

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, "James Yator Kisang v Land Adjudication Officer Elgeyo Marakwet & 3 others [2022] KEELC 824 (KLR)", Case Analysis (2022). Constitutional Petition No. E009 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/824/eng@2022-03-10

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