Makere Ole Lemara v Countyland Registrar, Narok & 4 others [2022] KEELC 1967 (KLR)
The bottom line
#The High Court in Narok dismissed a landowner's bid for interim orders to block an access road because the road had already been opened.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner/Applicant met the threshold for conservatory orders
He did not; the orders sought were spent and overtaken by events since the access road had already been opened
The court adopted the criteria in Board of Management of Uhuru Secondary School (prima facie case with likelihood of success, enhancement of constitutional values, nugatory petition, public interest, discretion) and held the access road had already been opened, so the applicant faced no imminent danger and his recourse lay at the full hearing of the petition.
Whether the court could make definitive findings on the underlying land dispute at the interlocutory stage
No; the court is required not to make definitive findings of fact or law on an application for conservatory orders
Relying on Kevin K. Mwiti v Kenya School of Law, the court noted that determinations on due process and encroachment belong to the full hearing of the petition. The applicant's available recourse is to demonstrate at the hearing how his rights were infringed by the opening of the access road.
Legal principles established
#- In considering an application for conservatory orders, the court is not called upon to make definitive findings of fact or law; the applicant need only establish a prima facie case with a likelihood of success
- Conservatory orders are constitutional remedies in rem meant to preserve the subject matter of the dispute in situ
- An applicant for conservatory orders must show imminent, evident and real danger where the relief sought has been overtaken by events
Court orders
#- 1.The Notice of Motion application dated 26th November, 2020 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Articles 27, 28, 29, 40, 50 and 259 of the Constitution of Kenya, 2010; Rules 13 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makere Ole Lemara v Countyland Registrar, Narok & 4 others [2022] KEELC 1967 (KLR)", Case Analysis (2022). Petition (Narok) – Notice of Motion dated 26th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1967/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.