[2008] KEHC 1971 (KLR)
The court found that the applicants, as members and occupants of the pension scheme houses, had demonstrated a prima facie case that their rights were at risk of violation through imminent eviction. The court held that the applicants would suffer irreparable loss if conservatory orders were not granted, while the...
Source-derived case information.
- Citation
- [2008] KEHC 1971 (KLR)
- Parties
- Applicant: Julius Kimolo Maseki; Applicant: Mary O. Cheche; Applicant: Hilda Atieno Ocham; Applicant: Alice Nekesa Gacheru; Applicant: Pamela Apollo; Applicant: Lydia K. Keitany; Applicant: Sebencia W. Akwata; Applicant: Jane C. Odindo; Respondent: The Registered Trustees Postal Corporation of Kenya Staff Pension Scheme
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 356 of 2008
- Procedural Posture
- Constitutional Petition / Ruling on Ex Parte Chamber Summons for Conservatory Orders
- Outcome
- conservatory orders granted for ninety days
- Legal Topics
- Right to Housing, Discrimination, Pension Scheme Rights, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kimolo Maseki
Applicant
Mary O. Cheche
Applicant
Hilda Atieno Ocham
Applicant
Alice Nekesa Gacheru
Applicant
Pamela Apollo
Applicant
Lydia K. Keitany
Applicant
Sebencia W. Akwata
Applicant
Jane C. Odindo
Applicant
The Registered Trustees Postal Corporation of Kenya Staff Pension Scheme
Respondent
Procedural Posture
Constitutional Petition / Ruling on Ex Parte Chamber Summons for Conservatory Orders
Legal Issues
- 1 Whether the applicants are entitled to conservatory orders to prevent eviction from the subject premises pending determination of the petition.
- 2 Whether the respondent's actions amount to discrimination contrary to the Constitution and the Retirement Benefits Act.
- 3 Whether the welfare and interests of pension scheme members are being upheld in the sale and eviction process.
Ratio Decidendi
The court found that the applicants, as members and occupants of the pension scheme houses, had demonstrated a prima facie case that their rights were at risk of violation through imminent eviction. The court held that the applicants would suffer irreparable loss if conservatory orders were not granted, while the respondent would not be prejudiced by the temporary preservation of the status quo. The court exercised its discretion under Rule 20 of the relevant constitutional rules to grant conservatory orders, emphasizing the need to protect the applicants' rights and interests pending the full hearing and determination of the petition.
Court Disposition
conservatory orders granted for ninety days
Orders
- Conservatory orders granted barring the respondent from evicting or interfering with the applicants' quiet possession of the premises as specified in prayers 2, 3, 4, and 5 of the Chamber Summons.
- The conservatory orders shall operate for ninety (90) days from the date of the ruling unless otherwise extended by the court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Petition 356 of 2008
JULIUS KIMOLO MASEKI ) MARY O. CHECHE HILDA ATIENO OCHAM ) ALICE NEKESA GACHERU PAMELA APOLLO ) ……...….………. PETITIONERS LYDIA K. KEITANY SEBENCIA W. AKWATA ) JANE C. ODINDO.
AND
THE REGISTERED TRUSTEES POSTAL CORPORATION OF KENYA STAFF PENSION SCHEME…...…..………... RESPONDENT
R U L I N G
Before me is a Chamber Summons dated 16th June, 2008 filed by M/s Kingoo- Wanjau & Company advocates on behalf of 8 applicants/petitioners. The Chamber Summons is purported to have been filed under Rules 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006. The application was filed pursuant to a Petition dated 16th June, 2008, which was filed on the same date. The main prayers sought in the Chamber Summons application are conservancy orders listed as prayers 2, 3, 4 and 5 in the application.
There are several grounds listed on the face of the Chamber Summons. The application is also supported by the affidavit of JULIUS KIMOLO MASEKI, one of the applicants sworn on 13th June, 2008. The grounds are basically that the subject houses in issue on L.R. Number 209/50008 – 150025 otherwise known as third Ngong Avenue Maisonettes in Nairobi were being sold by the respondent, the Registered Trustees of Postal Corporation of Kenya Staff Pension Scheme. Though the houses, were to be sold with first-priority to members of the Pension Scheme, the applicants who were scheme members and occupants of the houses were instead given up to 31st July, 2008 to vacate the houses. That in terms of Section 40 of the Retirement Benefits Act, the best welfare and interest of pension scheme members should be upheld, which was not being done in this particular case. The supporting affidavit gives more details on the complaints of the applicants. There is emphasis in the affidavit that there was discrimination and double standards, as different treatment was being given to similar scheme members in Lantana Flats (Westlands Nairobi), Kindaruma Lane Apartments, and flats at Parklands and Ofafa Maringo Estate.
The application which was filed under certificate of urgency was heard ex-parte. Ms. Kingoo- Wanjau, Counsel for the applicants made extensive submissions in support of the orders sought. Counsel submitted that, other than the intended action of the respondents in evicting the applicants being discriminatory and contrary to Section 40(b) of the Retirement Benefits Act, 1997, it also went against the provisions of Section 74 and 82 of the Constitution. Counsel argued that if the orders sought were not granted, the applicants would suffer irreparable loss. On the other hand, if the orders sought were granted, the respondents would suffer no prejudice.
I have considered the application, and the orders sought. This is an application for conservatory orders. Under rule 20 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, this court can grant conservatory or interim orders. The said rule provides-
“20. Notwithstanding anything contained in these Rules, a judge before whom a petition under rule 12 is presented may hear and determine an application for conservatory or interim orders.”
Having considered the application and submissions made before me, as well as having perused the petition filed herein, I am of the view that granting conservatory orders requested will be in the best interests of justice. Otherwise, from the facts placed before me, I am of the view that if conservatory orders are not granted, the applicants will suffer irreparable loss.
Consequently, I grant conservatory orders barring the respondents from evicting or in any manner interfering with the petitioners/applicants quiet possession of the premises mentioned in prayers 2, 3, 4, and 5 of the Chamber Summons. However, the conservatory orders hereby granted will operate for a period of only ninety (90) days from today, unless otherwise extended by the court.
It is so ordered.
Dated and delivered at Nairobi this 20th day of June, 2008.
George Dulu
Judge.
In the presence of-
Ms. Kingoo –Wanjau for applicants/petitioners.
Mwangi Court clerk.