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ELCDismissedConstitutional Petition E007 of 2021· [2022] KEELC 15273 (KLR)

Kinama v Sub County Land & Settlement Officer Kibwezi & 4 others

Environment and Land Court
7 December 2022
TMT W Murigi
4,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who lost her plot to registered owners could not stop its transfer because she wasn't living on it and official records favoured the other side.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Makueni (Murigi, J) on a Notice of Motion dated 3rd December 2021 in which the Petitioner, Lydia Mbuli Kinama, sought injunctions restraining the Respondents from interfering with, disposing of or dealing with plot number 613 at Mbweetwani Settlement Scheme, Mtito Andei, pending hearing of her constitutional petition. She claimed she purchased the plot in 1992, developed it, and that the 1st Respondent unlawfully transferred it to the 3rd Respondent and later the 4th and 5th Respondents, erasing her name from the register. The 3rd to 5th Respondents asserted that the 3rd Respondent was allocated the plot after adjudication in 2001 and lawfully sold it to the 4th and 5th Respondents, whose ownership the land records confirm. The court noted that interim relief in a constitutional petition should be sought as conservatory orders under the Mutunga Rules, but held that the mis-citation of Civil Procedure provisions was not fatal, applying Article 159(d) and (e). Applying the conservatory-order principles in Munya, Kaberia Nkunja and related authorities, the court found the official land records registered the property in the Respondents' names, that ownership was a matter for full trial, and that the Petitioner, not being in occupation, would suffer no prejudice. Public interest favoured preserving the 1st Respondent's records. The application was dismissed as devoid of merit; no costs order was made.

Key legal issues

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01

Procedural framework for interim relief in constitutional petitions

Holding

Although the application cited Civil Procedure Act and Rules instead of the Mutunga Rules, the defect was not fatal given Article 159(d) and (e); the court assessed the application against conservatory-order principles

Reasoning

The court acknowledged that in constitutional petitions interim relief should be sought as conservatory orders under Rules 23 and 24 of the Mutunga Rules, and that Civil Procedure Rules do not apply. However, invoking Article 159(d) and (e) and Classen, it held the mis-citation of provisions could not defeat the application, and proceeded to consider whether conservatory orders were merited on the material filed.

p. 5
02

Prima facie case for conservatory orders

Holding

The Petitioner failed to establish a prima facie case because the official land records showed registration in the 3rd, 4th and 5th Respondents' names

Reasoning

Applying the principles in Munya, Kaberia Nkunja and Kevin K Mwiti, the court required a prima facie case with likelihood of success. On the pleadings and documents, the Ministry of Lands records reflected the property registered in the 4th and 5th Respondents' names, previously the 3rd Respondent's. The Petitioner's competing claim based on a 1992 sale agreement and a ground report required full trial interrogation and could not sustain interim relief.

p. 7
03

Prejudice and public interest

Holding

The Petitioner would suffer no prejudice as she is not in occupation; public interest is served by preserving the 1st Respondent's records pending trial

Reasoning

Applying CREAW, the court found the Petitioner was not in occupation of the suit property - David Kyalo, a purchaser from the 4th and 5th Respondents, was in occupation - so denial of conservatory orders caused her no prejudice. On public interest, the court preferred preservation of the records held by the 1st Respondent until ownership is determined at trial.

Legal principles established

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  • Failure to cite the correct constitutional procedural provisions does not by itself defeat an application for interim relief in a petition
  • At the interlocutory stage the court must not make definitive findings of fact or law on ownership disputed before it

Court orders

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  1. 1.The Notice of Motion dated 3rd December 2021 was dismissed as devoid of merit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(c)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 4, 6 and 8; Order 51 Rule 1
  • Constitution of KenyaArticles 22, 23(3), 259(1), 159(d) and (e), 40(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23 and 24

Cases cited (11)

  • Giella Vs Cassman Brown
    [1973] EA 358

    Principles governing interlocutory injunctions

  • Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR

    Definition of prima facie case (relied on by Applicant)

  • Kenleb Cons Ltd Vs New Gatitu Service Station Ltd & Another
    [1990] eKLR

    Relied on by Applicant in support of injunction principles

  • James Yator Kisang Vs Land Adjudication Officer Elgeyo Marakwet & 3 Others
    [2022] eKLR

    Conservatory orders, not civil procedure injunctions, govern constitutional petitions

  • Nicholas Hendrick Classen Vs Commissioner of Lands & 4 Others
    (2016) eKLR

    Wrong citation of provisions does not defeat an application; substantive justice prevails

  • Judicial Service Commission Vs Speaker of the National Assembly & Another
    (2013) eKLR

    Definition of conservatory orders as remedies in rem

  • Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR

    Principles for granting interim conservatory orders

  • Wilson Kaberia Nkunja Vs The Magistrates and Judges Vetting Board and Others
    Nairobi High Court Constitutional Petition No. 154 of 2016

    Summary of principles for granting conservatory orders

  • Kevin K Mwiti & Others Vs Kenya School of Law & Others
    (2015) eKLR

    Prima facie case need not succeed but must disclose arguable constitutional issues

  • Kenya Association of Manufacturers & 2 Others Vs Cabinet Secretary - Ministry of Environment and Natural Resources & 3 Others
    (2017) eKLR

    Court makes no definite findings of fact or law at conservatory order stage

  • Centre for Rights Education & Awareness (CREAW) & Another Vs Speaker of the National Assembly & 2 Others
    (2017) eKLR

    Applicant must show rights under threat of violation and purpose of conservatory orders

Jurisdiction invoked
Articles 22, 23(3) and 159(d) and (e) of the Constitution; Civil Procedure Act and Civil Procedure Rules cited in the application

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, "Kinama v Sub County Land & Settlement Officer Kibwezi & 4 others", Case Analysis (2022). Constitutional Petition E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15273/eng@2022-12-07

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