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ELCAllowedApplication dated 18/12/2023 in ELC Suit (Kitale)

Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 5157 (KLR)

Environment and Land Court
9 July 2025
4,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's anti-corruption watchdog froze land and rental income in Kitale allegedly grabbed from a school, pending a full trial on whether the allocation was unlawful.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission moved the Environment and Land Court at Kitale by an application dated 18/12/2023 seeking a temporary injunction against Edwin Kipchirchir Tum over Kitale Municipality Block 12/236 (formerly Block 12/132), leave to appoint a receiver over the developments on the land, restraint over rental income, and the opening of a joint interest earning account. The Commission contended that the suit land had been reserved for Kitale School but was irregularly and fraudulently hived off and allocated to the late Nathaniel K. Tum in 1994 through an ultra vires letter of allotment issued without an approved physical development plan, with registration completed before approval of the PDP. The 1st respondent opposed, arguing the claim was time-barred, res judicata in light of earlier High Court and Court of Appeal proceedings, and that the applicant had not met the injunction or receivership thresholds. The court applied the Giella test and the receivership powers under Section 63 of the Civil Procedure Act, Section 56A of ACECA and Order 40/41, and found the applicant had demonstrated an arguable case and a risk of dissipation, noting that the 1st respondent had not denied the alleged irregularities and admitted the commercial developments. Judgment delivered on 9 July 2025 by C.K. Nzili J granted a restraining order over the suit property, restrained the 1st respondent from managing the developments and collecting rental income with effect from 5 August 2025, granted leave to appoint a receiver and to open a joint interest earning account.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the Giella test for grant of a temporary injunction over Kitale Municipality Block 12/236
  2. 2.Whether a receiver should be appointed over the developments and businesses on the suit property
  3. 3.Whether the rental income from the suit property should be restrained and deposited into a joint interest earning account

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

The court found an arguable case based on the alleged irregular, ultra vires and unprocedural allocation of school land and an attendant risk of dissipation

Reasoning

The court reviewed the pleadings and affidavits and found the applicant had shown that the suit land was allegedly reserved for Kitale School, that the allotment was issued ultra vires and without an approved PDP, and that the 1st respondent's affidavit did not deny the irregularities. Coupled with admitted commercial developments generating rental income, the applicant demonstrated an arguable case and a likelihood of dissipation if the land was not preserved.

p. 7
02

Whether to appoint a receiver over the developments on the suit land

Holding

Leave granted to the applicant to appoint a receiver within one month for control and management of the developments

Reasoning

The court invoked Section 63 of the Civil Procedure Act and Order 41 Rule 1 and Section 56A of ACECA, which allows a receiver for management, control and preservation of property. Noting the admitted fuel station, godown, supermarket and residential apartments leased out, and the risk that continued collection of income would frustrate any decree, the court held the circumstances warranted exercising receivership powers at the interlocutory stage.

p. 6
03

The 1st respondent's defences of res judicata and limitation

Holding

The court did not decide these conclusively; the applicant submitted they were inconsequential given an earlier ruling of 2/4/2025, and the court proceeded to consider the interlocutory thresholds

Reasoning

The 1st respondent argued the suit was time-barred and res judicata, relying on prior High Court and Court of Appeal decrees. The applicant countered that a ruling delivered on 2/4/2025 had rendered those issues inconsequential. On the interlocutory application the court assessed the parties' substantive contentions on merits and did not strike out or dismiss the suit on these preliminary grounds.

p. 5

Legal principles established

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  • A party seeking a temporary injunction must establish a prima facie case with probability of success, irreparable damage not compensable in damages, and balance of convenience
  • Appointment of a receiver is a discretionary equitable power exercised where it appears just and convenient to prevent the ends of justice being defeated
  • An applicant for preservatory/freeze-type relief must disclose reasonable grounds to suspect the property was acquired through corrupt conduct, balancing anti-corruption mandates with property rights
  • The burden of proving an alleged fact lies on the person who alleges it

Court orders

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  1. 1.A restraining order issued against the 1st respondent, his agents, servants, employees or assigns from alienating, selling, charging, leasing, developing, subdividing, transferring, wasting, disposing of or in any manner dealing with Kitale Municipality Block 12/236 pending hearing and determination of the suit
  2. 2.The 1st respondent restrained from controlling and/or managing the developments and businesses on the suit land
  3. 3.Leave granted to the applicant, within one month, to appoint a receiver for the control and management of the developments on the suit land pending hearing and determination of the suit
  4. 4.The 1st respondent restrained from demanding, collecting and/or receiving monthly rental income from the businesses on the suit land with effect from 5th August 2025
  5. 5.Leave granted for opening of a joint interest earning account in the names of the applicant and the 1st respondent to receive monthly rental income, within one month

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Interlocutory jurisdiction of the Environment and Land Court under the Civil Procedure Act, Order 40 of the Civil Procedure Rules and Section 56A of the Anti-Corruption and Economic Crimes Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A restraining order be and is hereby issued against the 1st respondent, his agents, servants, employees or assigns from alienating, selling, charging or further charging, leasing, developing, subdividing, transferring, wasting, disposing of or in any other manner dealing with Kitale Municipality Block 12/236, formerly Block 12/132, pending hearing and determination of the suit.
p. 8temporary injunction
Leave be and is hereby granted to the applicant within one month from the date hereof, to appoint a receiver for the control and management of the developments, including rental houses, a petrol station, a car wash, a supermarket, a warehouse and any other development situated on the suit land, pending hearing and determination of the suit.
p. 8appointment of receiver
Leave be and is hereby granted for the opening of a joint interest earning account in the names of the applicant and the 1st respondent, to receive monthly rental income from the developments and or businesses on the suit land, within one month from the date hereof.
p. 8joint account for rental income
I think the applicant has demonstrated an arguable case and a risk that if the suit land is not preserved, there is a likelihood of dissipation.
p. 7prima facie case and risk of dissipation
Irreparable damage or loss refers to one that cannot be measured in monetary terms. Speculative loss, fear, or apprehension is not enough.
p. 5test for irreparable harm

Issues in the judgment

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minor

Internal inconsistency in acreage: the PDP is said to hive off 4 Ha but the amended RIM is described as reflecting 'Parcel No. 132 measuring 4000 Ha'

minor

Apparent typographical error in the date of the Department of Survey letter, stated as 26/9/207

minor

Inconsistent PDP numbering: applicant refers variously to PDP No. 294 and PDP No. 249 approved on 29/1/1998

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, "Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 5157 (KLR)", Case Analysis (2025). Application dated 18/12/2023 in ELC Suit (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5157/eng@2025-07-09

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