Fondo & 45 others v Mwahadzi & 8 others (Petition E016 of 2023) [2024] KEELC 5178 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a prima facie case was established for conservatory orders
The application was dismissed because the applicants did not demonstrate a prima facie case with a probability of success
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petition, drafted oblivious to that decision, sought to challenge an Act of Parliament long declared unconstitutionally repealed, so its foundation collapsed and no arguable prima facie case with a probability of success existed.
Nature and principles for grant of conservatory orders
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
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.
Legal principles established
#- 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
#- 1.Application dated 20th April 2023 dismissed
- 2.No order as to costs (respondents never participated)
- Jurisdiction invoked
- Constitutional petition under Article 40 of the Constitution (interlocutory conservatory application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.