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ELCDismissedConstitutional Petition No E004 of 2023· [2024] KEELC 5495 (KLR)

Kamumo v Mugo & 6 others (Constitutional Petition E004 of 2023) [2024] KEELC 5495 (KLR)

High Court of Kenya
25 July 2024
3,928 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the High Court at Chuka (C.K Yano, J) determined a notice of motion dated 19th December 2023 brought by the petitioner, Ephantus Njuki Kamumo, under rules 13, 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The applicant sought interim conservatory orders restraining the 4th respondent from implementing a letter dated 29th August 2023 from the Land Adjudication and Settlement Department, Nairobi, and restraining the 2nd, 4th, 5th and 6th respondents from implementing the decision in Appeal to the Minister Case No. 417 of 2011 over parcel No. 537 Kamwimbi Adjudication Section, which had been re-heard on 13th December 2023 in his absence. The dispute over the parcel had generated multiple appeals to the minister (Nos. 194 of 2017, 417 of 2011 and 227 of 2019) with contradictory outcomes, and the applicant contended the re-hearing offended res judicata. The 1st respondent, Lawrence Muchiri Mugo, opposed, alleging the earlier rulings were irregular, backdated and fraudulent, while the 2nd to 7th respondents did not oppose. Applying the Gatirau Peter Munya and CREAW thresholds, the court found the applicant had not demonstrated a prima facie case with likelihood of success, that the petition would be rendered nugatory, or that public interest favoured the orders, the dispute being essentially private. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Threshold for grant of conservatory orders

Holding

The applicant must establish a prima facie case with likelihood of success, that the petition would be rendered nugatory absent the orders, and that public interest favours them; the applicant failed on all three limbs

Reasoning

The court applied the Gatirau Peter Munya test and the CREAW formulation. It held the petition not without substance but not shown to be arguable beyond a speculative basis, found the declarations sought could still be made at the conclusion of the main suit so no nugatory prejudice arose, and found the dispute private between the petitioner and 1st respondent, so no public interest was demonstrated.

p. 7
02

Whether the re-hearing of Appeal No. 417 of 2011 offended res judicata

Holding

Not determined on the merits at this interlocutory stage; the argument was insufficient to show the petition would be rendered nugatory without conservatory orders

Reasoning

The applicant argued the decision to re-hear a determined appeal offended res judicata. The court held this did not satisfy the second limb because the declarations sought in the petition could still be made at the conclusion of the main suit, relying on the Nelson Andayi Havi decision that delay is not synonymous with rendering an appeal nugatory.

p. 7

Legal principles established

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  • Conservatory orders are granted on the inherent merit of a case bearing in mind the public interest, constitutional values and proportionate magnitudes, unlike interlocutory injunctions
  • A party seeking a conservatory order need only demonstrate a prima facie case with likelihood of success and real danger of prejudice; the court should not delve into a detailed analysis of facts and law

Court orders

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  1. 1.The applicant's notice of motion application dated 19th December, 2023 is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rules 13, 19, 23 and 24

Cases cited (6)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    [2011] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Trust Bank Limited v Amin Company Ltd. & Another
    [2000] KLR 164
  • Mary Wangari Mwangi v Peter Ngugi Mwangi T/A Mangu Builders Ltd & 3 Others
    [2013] eKLR
  • Nelson Andayi Havi v Law Society of Kenya & 3 Others
    [2018] eKLR; Civil Application 28 of 2018 (UR 26/2018)
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rules 13, 19, 23 and 24

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, "Kamumo v Mugo & 6 others (Constitutional Petition E004 of 2023) [2024] KEELC 5495 (KLR)", Case Analysis (2024). Constitutional Petition No E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5495/eng@2024-07-25

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