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ELCDismissedNot stated in judgment (ELC Petition, Notice of Motion dated 26th February 2024)· [2025] KEELC 330 (KLR)

Ndonye & 225 other Cited Parties v Director of Land Adjudication & 15 others (Environment & Land Petition 1 of 2024) [2025] KEELC 330 (KLR)

Environment and Land Court
29 January 2025
TMT. Murigi
3,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to freeze land dealings on the Nguu settlement scheme, ruling squatters had not made a strong enough case without a full trial.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 26th February 2024 in which the Petitioners, through Kyengo Ndonye as de facto chairman of Nguu Squatters Association, sought conservatory orders restraining the 1st to 3rd Respondents from processing documents, effecting transfers or issuing title deeds over L.R No. 12971 (the suit property), and restraining the 6th to 16th Respondents from trespassing on, arresting, harassing or prosecuting the Petitioners pending hearing of the Petition. The Petitioners traced a history of the land from settler occupation through ADC allocation, subdivision, take-over by Masaku County Council, surrender by Nguu Ranching Cooperative Society in 1994 for settlement of the landless, a presidential decree of 1992 establishing the Nguu Settlement Scheme, and a 1996 verification committee whose process they alleged was irregular, resulting in double allocations and titles issued to affluent non-squatters. The Respondents opposed through grounds of opposition, arguing the application was defective, that no violation of rights was demonstrated, that the allocation was under the settlement scheme regime rather than adjudication, and that the court lacked jurisdiction. The court framed one principal issue: whether the Applicants met the threshold for conservatory orders. Applying the Munya principles and related authorities, the judge held that ownership and the validity of the adjudication and verification process could not be determined at the interlocutory stage and required a full trial. The court found no prima facie case established and no prejudice that would flow from refusal of the orders. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Petitioners established a prima facie case warranting conservatory orders

Holding

They did not; their challenge to the adjudication and verification process and the ownership of the suit property could not be determined at the interlocutory stage

Reasoning

The court held that ownership and validity of the adjudication and verification process are matters for full trial where witnesses can be called and cross-examined. At the interlocutory stage the Applicants had to establish a prima facie case with likelihood of success without definitive findings, and failed to do so.

p. 8
02

Whether the Applicants would suffer prejudice if conservatory orders were not granted

Holding

No prejudice was demonstrated

Reasoning

Applying CREAW, the court required the Applicants to show their rights were under threat of continuing violation. The claim rested on an alleged flawed adjudication process which could not be proved at that stage, so the court found no prejudice would flow from refusal of the orders.

p. 8

Legal principles established

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  • In an application for a conservatory order the court must not make definitive findings of fact or law on the dispute
  • Conservatory orders are remedies in rem meant to preserve the subject matter, not ordinary civil remedies
  • A prima facie case for conservatory relief need not be a case that must succeed, but must not be frivolous and must disclose arguable constitutional issues

Court orders

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  1. 1.The Notice of Motion dated 26th February 2024 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Sections 13(7) and 150 of the Land Act

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, "Ndonye & 225 other Cited Parties v Director of Land Adjudication & 15 others (Environment & Land Petition 1 of 2024) [2025] KEELC 330 (KLR)", Case Analysis (2025). Not stated in judgment (ELC Petition, Notice of Motion dated 26th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/330/eng@2025-01-29

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