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ELCDismissedEnvironment & Land Petition 5 of 2021· [2023] KEELC 18028 (KLR)

Chemogisichi & another v Towet & 11 others

Environment and Land Court
8 June 2023
MNMwangi F Njoroge
2,361 words in judgment
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The bottom line

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A Kenyan landowner with title deeds still lost interim protection because a parallel ownership case was already running in a lower court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge, J) determines two interlocutory applications dated March 8, 2021 and March 18, 2021 in a constitutional petition by the Chemogisichis, registered owners of parcels Nakuru/Nessuit/896 and 897, against private parties and state officers. The petitioners sought unconditional use of the land, conservatory orders restraining the 1st-4th respondents from interference and the 8th and 9th respondents (police and GSU) from harassment, an order for DCI investigations into tree felling, and disclosure of records by the Land Registrar and Land Surveyor. The 1st-4th respondents opposed on the ground of sub judice, citing a pending Chief Magistrate's suit (ELC 35 of 2020) over the same parcels in which a status quo order had been recorded. The court framed two issues: sub judice and whether conservatory orders should issue. On the first, applying the Supreme Court's distinction in Munya between conservatory orders and interlocutory injunctions, it held the two suits merely related, not similar, since the petition joins public officers and seeks public-law relief. On the second, although the applicants exhibited titles and the respondents raised no prima facie defence to ownership, the court declined conservatory orders because the lower court suit addresses ownership and injunctions and there was no information on the fate of the injunction application there. Orders against the DCI, Registrar and Surveyor were also refused. Both applications were dismissed with each party bearing their own costs, and a mention set for June 19, 2023 for directions on the main petition.

Key legal issues

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01

Whether the applications violated the sub judice rule given the pending lower court suit

Holding

No violation; the two suits are related but not similar because the petition joins public officers and seeks conservatory orders, unlike the private-law remedies in the lower court suit.

Reasoning

The lower court plaint seeks declaration of ownership, injunctions and mesne profits - purely private remedies between citizens. The petition joins public officers and seeks conservatory orders pending ventilation of constitutional grievances. Relying on Munya and Kenya Hotel Properties, the court distinguished conservatory orders from interlocutory injunctions and held the questions merely related, not similar, so the sub judice rule was not offended.

p. 5
02

Whether conservatory orders should issue

Holding

Refused. Although the applicants exhibited titles and the 1st-4th respondents raised no prima facie defence to ownership, the existence of the lower court ownership suit made conservatory orders unfit at this stage.

Reasoning

The applicants exhibited title documents while the 1st-4th respondents exhibited nothing supporting their claim after two years, so no prima facie defence to ownership was noted. However, because another suit addresses ownership and injunctive relief in a civil manner which the petition cannot address, and absent information on the fate of the lower court injunction application, conservatory orders would not be fit.

Legal principles established

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  • Conservatory orders bear a public-law connotation and are granted on the inherent merit of a case, bearing in mind public interest and constitutional values, unlike interlocutory injunctions.
  • The sub judice rule bars parallel litigation over the same cause of action, subject matter and relief; related but not similar questions do not offend the rule.

Court orders

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  1. 1.The two applications dated March 8, 2021 and March 18, 2021 are dismissed.
  2. 2.Each party shall bear their own costs.
  3. 3.Parties to appear before the court on a mention on June 19, 2023 to take directions on the mode of hearing of the main petition.

Authorities

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Cases cited (4)

  • Peter Gatirau Munya v Dickson Mwenda Kithinji & 2 others

    Distinction between conservatory orders and interlocutory injunctions; test for conservatory orders.

  • Martin Nyaga Wambora v Speaker of County Assembly of Embu & 3 others
    2014 eKLR

    Same distinction between conservatory orders and interlocutory injunctions.

  • Benson Mutura v County Government of Nairobi & 7 others
    2016 eKLR

    Same distinction between conservatory orders and interlocutory injunctions.

  • Kenya Hotel Properties Limited v Willesden Investments Limited & Kenya Revenue Authority
    [2018] eKLR

    Public interest considerations in granting conservatory orders.

Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited in the ruling)

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, "Chemogisichi & another v Towet & 11 others", Case Analysis (2023). Environment & Land Petition 5 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18028/eng@2023-06-08

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