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ELCDismissedNot stated (Petition with Notice of Motion dated April 20, 2022)· [2023] KEELC 75 (KLR)

Beja & another v Cabinet Secretary Ministry of Lands & 9 others; County Government of Kilifi & another (Interested Parties) (Environment & Land Petition 13 of 2022) [2023] KEELC 75 (KLR)

Environment and Land Court
16 January 2023
MOM.A. ODENY
2,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Malindi court refused to halt a government land settlement exercise, ruling the applicants failed to prove a strong enough case for conservatory orders.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated April 20, 2022 in a pending Petition. The Petitioners sought conservatory orders against the Respondents staying or suspending any formation of a land committee, fresh adjudication, demarcation or survey of Plot No 10 Kidutani/Mtwapa GL 15A (AKA GL Nyika Reserve), land they said had been adjudicated to 174 beneficiaries in 1988, pending determination of the application and the Petition. The Applicants, through the affidavit of Rumba Matano Beja, argued the adjudication exercise under the Land Adjudication Act had created a legitimate expectation, and relied on authorities on conservatory orders. The Respondents, through the Land Adjudication and Settlement Officer Kilifi, deponed that the earlier exercise was abandoned on discovery that the land was government land without reservation; that following a fresh reservation by the National Land Commission the current exercise is regularization/settlement of squatters rather than adjudication, that the Act does not apply to these parcels, and that public interest favours completion of the survey benefiting many non-party squatters. Framing the single issue as whether conservatory orders should issue, the court applied the prima facie case, constitutional-values, public-interest and discretion principles. It found open factual questions on the status of the land and held that a conservatory order would be counterproductive and would amount to determining the Petition at an interlocutory stage. The application was dismissed for failing to meet the threshold, with the Petition still pending.

Key legal issues

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Whether conservatory orders should issue to halt fresh adjudication/demarcation/survey of the suit land

Holding

Application dismissed; Applicants did not meet the threshold for conservatory orders

Reasoning

The court applied the established principles: prima facie case, enhancement of constitutional values, public interest and exercise of discretion. It found open factual questions on whether the land is an adjudication section or government land and held that public interest in settling squatters on over 500 hectares outweighed the applicants' individual claims, and that issuing orders would amount to determining the petition at an interlocutory stage.

p. 4

Legal principles established

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  • An applicant for conservatory orders must demonstrate a prima facie case with likelihood of success and prejudice, that the relief enhances constitutional values and that public interest favours the grant

Court orders

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  1. 1.The Notice of Motion dated April 20, 2022 seeking conservatory orders is dismissed with the Petition still pending hearing

Authorities

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Legislation

  • Land Adjudication ActSections 5 to 27, Sections 6, 27 and 28
  • Constitution of Kenya, 2010Articles 22 and 23(3)
  • Civil Procedure RulesOrder 21(1)

Cases cited (9)

  • Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another
    [2018] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education and 2 others
    (2015) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others
    (2014) eKLR
  • Center For Rights and Awareness (CREAW) & 7 others v Attorney General
  • Platinum Distillers Limited v Kenya Revenue Authority
    (2019) eKLR
  • Kenya Small Scale Farmers Forum v Cabinet Secretary Ministry of Education
    High Court Petition No 399 of 2015 eKLR
  • Adrian Kamotho Njenga v Selection Panel for the Appointment of Commissioners of the Independent Electoral and Boundaries Commission & 2 others; Independent Electoral and Boundations Commission [2021] eKLR
    [2021] eKLR
  • Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another
    [2015] eKLR
  • Susan Wambui Kaguru & 4 others v Attorney General & another
    [2012] eKLR
Jurisdiction invoked
Articles 22 and 23(3) of the Constitution (invoked by the Applicants for conservatory relief)

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, "Beja & another v Cabinet Secretary Ministry of Lands & 9 others; County Government of Kilifi & another (Interested Parties) (Environment & Land Petition 13 of 2022) [2023] KEELC 75 (KLR)", Case Analysis (2023). Not stated (Petition with Notice of Motion dated April 20, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/75/eng@2023-01-16

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