Nyasaidi Famau Athman v Kilifi Plantations Coastal Limited & 5 others [2022] KEELC 1991 (KLR)
The bottom line
#A Kenyan court froze development and title dealings on two Kilifi land parcels pending investigation into whether they were irregularly carved from public land.
What this practically means
#Executive summary
#Key legal issues
#Principles governing grant of conservatory orders
Conservatory orders are public-law oriented and should be granted on the inherent merit of a case considering public interest and constitutional values
The court adopted the Supreme Court's test in Gatirau Peter Munya that conservatory orders are not linked to private-law interlocutory injunction considerations such as irreparable harm or high probability of success, but should be granted on the inherent merits of the case with regard to public interest and constitutional values. It supplemented this with the CREAW test of threatened or actual violation of rights and the Kenya Association of Manufacturers test of prima facie case and prejudice.
Whether the Petitioner established a prima facie case over the suit properties
The Petitioner raised a legitimate concern and disclosed arguable constitutional issues; a prima facie case need not be one that must succeed
The Petitioner annexed Survey Plan FR 111/37 suggesting a public access road existed on the parcels now designated Group V/1625 and Group V/1626, plus the 1993 survey plans through which the properties were allegedly irregularly created. The court held it was necessary to interrogate the circumstances under which the properties were created from what was possibly public land, and that the creation may have been against the public interest and the right of equal access to public property.
Whether preservation of the suit properties was necessary pending trial
Yes - the 1st and 2nd Respondents had begun placing beacons and developing the properties, creating urgency to preserve the subject matter
The 2nd Respondent's own Replying Affidavit admitted an intention to develop the land, and the Petitioner's Further Affidavit showed that development had commenced. The court was persuaded there was an urgent need to preserve the properties pending an inquiry into how they were created. The Respondents' assertions of valid title were matters to be tested at the substantive hearing.
Legal principles established
#- Conservatory orders should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes
- A party seeking conservatory orders must show that their rights are under threat of violation, are being violated, or will be violated and that such violation is likely to continue unless the order is granted
- On an application for conservatory orders, the court does not make definite findings of fact or law but examines whether a prima facie case is made out and whether the applicant will suffer prejudice if the order is not granted
Court orders
#- 1.A conservatory order barring the 1st and 2nd Respondents, their agents, servants, employees or any person acting at their behest or benefit, from constructing, developing, fencing, entering into occupation or in any other manner dealing with the suit property LR V/278 (currently LR V/1625) and LR V/279 (currently LR V/1626) as private property or in any manner adverse to the Petitioner and the residents of Kilifi County, pending the hearing and determination of the Petition (prayer 3)
- 2.A conservatory order barring the 3rd Respondent from making any entries in the Register in respect of the suit property (prayer 5)
- 3.Costs of the application in the cause
- Jurisdiction invoked
- Constitutional petition jurisdiction (Petition seeking conservatory orders under the Constitution); specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyasaidi Famau Athman v Kilifi Plantations Coastal Limited & 5 others [2022] KEELC 1991 (KLR)", Case Analysis (2022). Notice of Motion dated 28th September 2020 in a Petition (Petition number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1991/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.