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ELCPartially AllowedEnvironment & Land Petition 3 of 2022· [2023] KEELC 15819 (KLR)

Ole Kanktai v Kinampu & 5 others

Environment and Land Court
21 February 2023
EWEmmanuel M. Washe
3,884 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 court froze the current occupation of disputed Transmara land and blocked any sale or transfer of its title until the full case is heard.

What this practically means

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Executive summary

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This ruling by Washe J of the Environment and Land Court at Kilgoris determined a notice of motion dated 5th August 2022 filed by Moses Ole Kanktai in a constitutional petition concerning parcel L.R. No. Transmara/Oldanyati/411. The Petitioner, alleging he was allocated the land during adjudication, claimed that the 1st Respondent's appeal to the Minister (Minister's Appeal No. 360 of 2012) was filed outside the 60-day period under section 29(1) of the Land Adjudication Act and was therefore unlawfully admitted; that the parties later settled the dispute by an agreement marked as withdrawn; but that the State respondents nonetheless issued a title to the 1st Respondent on 4th March 2021, violating his property rights. He sought interim conservatory orders restraining the Respondents from interfering with the suit property. Only the 1st Respondent responded, asserting lawful registration and occupation, denying knowledge of the withdrawal agreement, and contending that the Minister's decision is final and that the dispute was private, rendering the remedies in personam. The Court framed three issues: jurisdiction, the principles for conservatory orders, and costs. It held that because the Petition involves alleged unlawful conduct by public office holders and the orders sought operate in rem, the ELC has jurisdiction. Applying JSC v Speaker, Munya, CREAW and Board of Management of Uhuru Secondary School, it found a prima facie case and a risk that the subject matter would be alienated. However, since both parties occupy separate portions, the Court issued a status quo order and directed the 5th Respondent to register an inhibition against the title pending the Petition, listed the Petition for hearing within 45 days, and ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction to issue conservatory orders in a land dispute between private individuals

Holding

The ELC has jurisdiction because the orders sought are in rem and the complaint implicates public officers.

Reasoning

The 1st Respondent argued the dispute was private and remedies were in personam, relying on Munya and JSC v Speaker. The Court distinguished in personam from in rem remedies, noting the petitioner sues public office holders over alleged unlawful registration and the determination will bind the world as regards the suit property. The challenge therefore bears a public-law character and the Court may entertain the petition and grant conservatory relief.

p. 6
02

Whether the Applicant satisfied the principles for a conservatory order

Holding

Prima facie case established and preservation warranted, but tailored orders (status quo plus inhibition) rather than the orders as prayed.

Reasoning

Applying JSC v Speaker, Munya and CREAW, the Court found the conflicting documentary versions of how the title was processed raised serious arguable issues amounting to a prima facie case. On preservation, a title had issued to the 1st Respondent who could deal with it, and without orders the Petitioner risked eviction rendering the petition futile. But since both parties occupy separate portions, a blanket order would unfairly exclude the 1st Respondent; the Court invoked its inherent powers to frame proportionate orders.

p. 8

Legal principles established

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  • A dispute over registered land involving allegations of unlawful acts by public officers is not a purely private matter; constitutional remedies in rem are available in the ELC.
  • Where a petition raises arguable points of law and fact, a prima facie case for conservatory relief is established.

Court orders

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  1. 1.Status quo order issued as regards the portions occupied by the Petitioner and 1st Respondent pending hearing and determination of the Petition
  2. 2.The 5th Respondent directed to register an inhibition against the title deed and register of L.R. No. Transmara/Oldanyati/411 pending determination of the Petition or further orders
  3. 3.Petition listed for hearing within 45 days from the date of the ruling
  4. 4.Each party to bear its own costs of the application

Authorities

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Legislation

  • Land Adjudication Act, Cap 284 Laws of KenyaSection 26
  • Land Adjudication Act, Cap 284 Laws of KenyaSection 29(1)
  • Land Adjudication Act, Cap 287 Laws of KenyaSection 29(1)
  • Civil Procedure Rules (inherent powers)Section 3A

Cases cited (6)

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

    Conservatory orders bear a public-law connotation and are granted on inherent merit, public interest and constitutional values.

  • Judicial Service Commission v Speaker of the National Assembly & Another
    (2013) eKLR (Petition No. 518 of 2013)

    Conservatory orders are constitutional remedies in rem meant to preserve the subject matter of the dispute.

  • Monata Matiko Chonchorio v John Marwa Chabaro
    (2021) eKLR

    Relied on by the 1st Respondent on the private nature of the dispute; not adopted.

  • Japheth Nzila Muangi v Kenya Safari Lodges & Hotels Limited
    (2008) eKLR

    Distinction between judgments in personam and judgments in rem.

  • Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General
    [2011] eKLR

    Applicant for conservatory order need only show prima facie case with likelihood of success and real danger of prejudice.

  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR

    A prima facie case must show likelihood of success and be beyond a speculative basis.

Jurisdiction invoked
Article 165(2) constitutional petition jurisdiction of the High Court as vested in the Environment and Land Court

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, "Ole Kanktai v Kinampu & 5 others", Case Analysis (2023). Environment & Land Petition 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15819/eng@2023-02-21

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