Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 8 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Environment and Land Petition E9 of 2022) [2024] KEELC 5693 (KLR)
The bottom line
#The Environment and Land Court refused to protect disputed Lake Naivasha riparian land, holding that registered owners' titles stand until fraud is proven at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether a prima facie case was established for conservatory orders
No prima facie case was established; conservatory orders were refused
The court distinguished between what is undisputed (registration and activities of the 5th to 8th Respondents) and what is disputed (whether the parcels are riparian public land and were lawfully alienated). It held that the Applicants' own prayer for a survey report to establish whether the parcels fall within the riparian reserve demonstrated they had not adduced sufficient evidence of a prima facie case. Pending a finding on unprocedural allocation, registered proprietors' proprietary rights should not be interfered with.
Whether the court can compel production of the survey report in exercise of Article 35 rights
The order cannot be granted by this court; the Access to Information Act procedure must be exhausted and enforcement lies in the High Court
Following Kitundu v Sheik, the court held that an applicant seeking information held by State offices must first write to the office concerned under the Access to Information Act and, if refused, file a constitutional petition in the High Court. The Petitioners had not demonstrated compliance with that procedure, and the ELC has no jurisdiction over Article 35 infringement claims.
The nature of conservatory orders and the principles governing their grant
Conservatory orders are public-law remedies in rem, granted on proof of a prima facie case with likelihood of success, that the petition would otherwise be rendered nugatory, and on public interest
Relying on Gatirau Peter Munya, JSC v Speaker of the National Assembly, Muslim for Human Rights and Wilson Kaberia Nkunja, the court restated the principles: a prima facie case with likelihood of success, that the petition would be rendered nugatory absent the orders, and public interest. Having failed on the first principle, the court did not consider the rest.
Legal principles established
#- Registration of a person as proprietor of land is prima facie evidence of ownership and a registered proprietor deserves protection until title is shown to be fraudulent, illegal or unprocedural
- A party seeking to enforce the right of access to information under Article 35 must first exhaust the procedure in the Access to Information Act before moving the High Court
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application dated 20th December, 2022 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Articles 22, 23, 258, 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 8 others; Ethics & Anti-Corruption Commission & another (Interested Parties) (Environment and Land Petition E9 of 2022) [2024] KEELC 5693 (KLR)", Case Analysis (2024). Petition dated 20th December, 2022 (filed 21st December, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5693/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.