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ELCDismissedNot stated in the judgment (application dated 20th April 2023)· [2024] KEELC 5178 (KLR)

Fondo & 45 others v Mwahadzi & 8 others (Petition E016 of 2023) [2024] KEELC 5178 (KLR)

Environment and Land Court
4 July 2024
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Malindi Environment and Land Court refused to stop evictions on disputed Mazrui trust land because the petitioners' legal argument rested on a claim already decided against them in 2012.

What this practically means

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Executive summary

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By an application dated 20th April 2023, the petitioners, represented by Kalama Fondo Nyamawi, sought a conservatory order restraining the respondents from evicting them or demolishing their homesteads on Title No. 161/Section III/MN and its subdivisions pending determination of their petition. The applicants claimed ancestral occupation of the land since time immemorial and contended that, following the repeal of the Mazrui Land Trust Act on 1st December 1989, adjudication ought to have been conducted in their favour; instead, the 1st to 5th respondents allegedly conspired with land officials to fraudulently subdivide and obtain title, violating their rights under Article 40 of the Constitution. The respondents did not participate despite service by advertisement, and the applicants' counsel filed no written submissions despite directions. Makori J. framed the sole issue as whether a conservatory order should issue. The court restated the principles for conservatory orders from Gatirau Peter Munya and other authorities: preservation of the substratum of the suit, a prima facie case with likelihood of success, risk of the petition being rendered nugatory, and public interest. Critically, the court noted that Tuiyott J. in Ahmed Abdalla Mohamed & 3 others v Attorney General [2012] eKLR had declared the 1989 repeal of the Mazrui Land Trust Act unconstitutional, null and void. The petition appeared drafted oblivious to that decision, and its quest for adjudication was therefore not well grounded. Concluding that the applicants had not established a prima facie case with a probability of success, the court found it unnecessary to consider the other principles, dismissed the application dated 20th April 2023 on 4th July 2024, and made no order as to costs since the respondents never participated.

Key legal issues

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01

Whether a prima facie case was established for conservatory orders

Holding

The application was dismissed because the applicants did not demonstrate a prima facie case with a probability of success

Reasoning

The applicants' claim rested on the assumption that adjudication ought to follow the repeal of the Mazrui Land Trust Act. However, the High Court in Ahmed Abdalla Mohamed had already declared that repeal unconstitutional, null and void in 2012. The petition, drafted oblivious to that decision, sought to challenge an Act of Parliament long declared unconstitutionally repealed, so its foundation collapsed and no arguable prima facie case with a probability of success existed.

p. 5
02

Nature and principles for grant of conservatory orders

Holding

Conservatory orders preserve the substratum of the suit, are public-law remedies in rem, and are granted on the inherent merit of the case considering public interest and constitutional values

Reasoning

Drawing on Gatirau Peter Munya (Supreme Court), Invesco Assurance, Judicial Service Commission v Speaker of the National Assembly, Uhuru Secondary School and Wilson Kaberia Nkunja, the court restated that conservatory orders preserve the subject matter in situ, are constitutional remedies in rem, and require demonstration of a prima facie case, risk of the petition being rendered nugatory, and public interest considerations.

p. 4

Legal principles established

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  • A conservatory order preserves the substratum of the suit pending determination of the main issues, granted on the inherent merit of the case bearing in mind public interest, constitutional values and proportionate magnitudes
  • An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success and real danger of prejudice, that the petition would be rendered nugatory without the orders, and that public interest favours the grant

Court orders

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  1. 1.Application dated 20th April 2023 dismissed
  2. 2.No order as to costs (respondents never participated)
Jurisdiction invoked
Constitutional petition under Article 40 of the Constitution (interlocutory conservatory 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, "Fondo & 45 others v Mwahadzi & 8 others (Petition E016 of 2023) [2024] KEELC 5178 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 20th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5178/eng@2024-07-04

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