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ELCDismissedNot stated in the ruling· [2022] KEELC 1954 (KLR)

Tairen Association of Mijikenda v Chakama Ranching Company Limited & 7 others; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1954 (KLR)

Environment and Land Court
18 January 2022
MOM.A. Odeny
2,557 words in judgment
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The bottom line

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The Environment and Land Court in Malindi refused to block land title registrations in Kilifi, ruling the applicants proved no immediate danger while their case waits for a full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determines a Notice of Motion dated 13th August 2021 by the Petitioners in an interlocutory application within a constitutional petition concerning adjudication of land (LR No. 13472/1 and LR No. 13472/2) in Kilifi. The Petitioners sought conservatory orders restraining the 7th Respondent from registering and issuing title deeds arising from the adjudication, restraining proprietors from dealing with the suit parcels, and certification that the petition raises substantial questions of law for empanelment of an uneven bench by the Chief Justice. Only the Petitioners filed submissions; the 1st Respondent filed a replying affidavit and the 3rd, 4th, 5th, 7th and 8th Respondents filed grounds of opposition, arguing lack of locus standi, lack of demonstrable title, failure to meet the conservatory order threshold, non-exhaustion of remedies under the Land Adjudication Act, and imprecision under the Anarita Karimi Njeru criteria. The court framed two issues: whether conservatory orders were merited, and whether the petition raises substantial questions of law. Applying CREAW and MUHURI, it found the petitioners had not demonstrated real danger, prejudice or threatened violation, noting all parties admitted the communities' continued livestock-rearing use of the land. On certification, applying the Steyn principles as modified in Omtatah Okoiti, it held the petition concerned the petitioners' private interest rather than the public interest and failed to identify specific elements of general public importance. The application was dismissed with each party bearing their own costs, and the main petition was directed to be fast tracked on a priority basis.

Key legal issues

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01

Threshold for conservatory orders

Holding

Petitioners failed to demonstrate real danger or prejudice; conservatory orders refused

Reasoning

The court adopted the CREAW and MUHURI formulations: a party seeking conservatory orders must show rights under threat of violation and that the violation will continue absent the order, preserving the subject matter. Here all parties admitted the communities' continued use of the land for livestock rearing; nothing had changed, so no prejudice or threatened violation was shown and the status quo did not require preservation by order.

p. 3
02

Certification of substantial questions of law under Article 165(4)

Holding

Certification refused; the petition raises no public-interest question

Reasoning

Applying the Steyn principles as modified in Omtatah Okoiti, the court held that a matter must transcend the particular case and bear significantly on the public interest. The petition concerns the petitioners' own interest in the suit land and historical injustice claims, which can be determined like any other rights petition; the petitioner also failed to identify the specific elements of general public importance.

p. 4

Legal principles established

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  • An applicant for conservatory orders must demonstrate a real danger or threatened violation of rights that would continue unless the order is granted
  • Certification under Article 165(4) requires a matter transcending the particular case with significant bearing on the public interest

Court orders

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  1. 1.The application dated 13th August 2021 is dismissed
  2. 2.Each party to bear their own costs
  3. 3.The matter to be fast tracked and a date given on priority basis

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(2), 10(1)(c), 22(1), 22(2)(d), 258, 40, 60, 162, 163(4)(b), 165(4), 260
  • Land Adjudication ActSection 30; Section 8 reference re public participation
  • Community Land ActSection 8
  • National Land Commission Act, 2015Section 15
  • Civil Procedure RulesOrder 21(1)

Cases cited (8)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Hon. Fatuma Adan Dulo & 5 others versus Cabinet Secretary Ministry of Lands & Physical Planning & 2 others
  • Anarita Karimi Njeru V R
    (1979)
  • Centre for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others
    (2017) eKLR
  • Muslims For Human Rights (MUHURI) & 2 Others -vs- Attorney General & 2 Others
    High Court Petition No. 7 of 2011
  • Hermanus Phillipus Steyn v Giovanni Gnechi-Ruscone
    [2013] eKLR
  • Okiya Omtatah Okoiti & another v Anne Waiguru - Cabinet Secretary, Devolution and Planning & 3 others
    [2017] eKLR
  • Vadag Establishment vs. Y A Shretta & Another
    Nairobi High Court (Commercial & Admiralty Division) Misc. High Court Civil Suit No. 559 of 2011
Jurisdiction invoked
Articles 60, 162 and 165 of the Constitution of Kenya, 2010 (as submitted by the Petitioners); application under the court's conservatory and certification jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tairen Association of Mijikenda v Chakama Ranching Company Limited & 7 others; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1954 (KLR)", Case Analysis (2022). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1954/eng@2022-01-18

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