[2021] KEELC 945 (KLR)
The court found that the applicant failed to demonstrate any violation or threat of violation of his constitutional rights that would justify the grant of conservatory orders. The suit property had already been distributed to the beneficiaries of the deceased registered owner, and the applicant had not shown that he...
Source-derived case information.
- Citation
- [2021] KEELC 945 (KLR)
- Parties
- Applicant: Julius Kiptoo Korir; Respondent: Julius Karanja Mwaura; Respondent: George Ndungu Chege; Respondent: Lucy Njoki Chege; Respondent: Kimaiyo Kipsang Moses
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Conservatory Orders Pending Suit
- Outcome
- application dismissed
- Judges
- EO Obaga
- Legal Topics
- Adverse Possession, Conservatory Orders, Succession and Estates, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kiptoo Korir
Applicant
Julius Karanja Mwaura
Respondent
George Ndungu Chege
Respondent
Lucy Njoki Chege
Respondent
Kimaiyo Kipsang Moses
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Conservatory Orders Pending Suit
Legal Issues
- 1 Whether the applicant is entitled to conservatory orders to preserve the suit property pending determination of the suit for adverse possession.
- 2 Whether the applicant has demonstrated violation or threat of violation of constitutional rights warranting conservatory orders.
- 3 Whether the applicant has met the legal threshold for grant of conservatory orders in the context of a land dispute.
Ratio Decidendi
The court found that the applicant failed to demonstrate any violation or threat of violation of his constitutional rights that would justify the grant of conservatory orders. The suit property had already been distributed to the beneficiaries of the deceased registered owner, and the applicant had not shown that he was entitled to preservation of the property on constitutional grounds. The court emphasized that conservatory orders are typically granted in constitutional petitions, not in ordinary land disputes, and that the applicant had not met the threshold for such orders. Consequently, the application for conservatory orders was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for conservatory orders is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO.12 OF 2021 (OS)
IN THE MATTER OF LAND PARCEL TITLE NO. MOIBEN/MEIBEKI/BLOCK.9 (BARSOMBE) 192
AND
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP, 22 LAW OF KENYA
BETWEEN
JULIUS KIPTOO KORIR.........................................................PLAINTIFF/APPLICANT
AND
JULIUS KARANJA MWAURA................................1ST DEFENDANT/RESPONDENT
GEORGE NDUNGU CHEGE...................................2ND DEFENDANT/RESPONDENT
LUCY NJOKI CHEGE.............................................3RD DEFENDANT/RESPONDENT
KIMAIYO KIPSANG MOSES.................................4TH DEFENDANT/RESPONDENT
(As Personal Representatives, Beneficiaries and Creditors of the Estate of WANJIRU MWAURA (DECEASED)
RULING
1. This is a ruling in respect of a Notice of Motion dated 14th June,2021 in which the Applicant seeks the following orders;-
1) Spent
2) Spent
3) That this honourable court be pleased to issue a conservatory Order to preserve land parcel MOIBEN/MOIBEKI BLOCK 9 (BARSOMBE NYAKIAMBI)192 from transmission, forceful entry, destruction of fence or crop on the suit land pending the hearing and determination of this suit.
4) That the cost of the application be provided for.
2. The Applicant filed an originating summons seeking orders that he had acquired part of LR.NO. MOIBEN/MEIBEKI BLOCK 9 (BARSOMBE NYAKIAMBI)192 (Suit property) by way of adverse possession. He contemporaneously filed a Notice of Motion in which he seeks the orders specified in paragraph 1 (one) hereinabove.
3. The Applicant contends that in 1992, the registered owner of the suit property abandoned the same. He moved into the suit property and occupied it in 1992. In 2004, the beneficial owners came back and they agreed to sell to him a portion measuring 3. 5 acres. He paid for 3. 5 acres but the registered owners went away without effecting the transfer of the purchased portion.
4. The Applicant later learnt that the registered owner had died and that the process of succession had commenced. The administrators of the estates of the registered proprietors came in the company of police and the area chief and carried out subdivision without involving him. It is on this basis that he is seeking an order to preserve the suit property from being transmitted to the beneficiaries of the registered proprietors.
5. The respondents are said to have been served through the are assistant chief and the others personally but they neither entered appearance nor filed any grounds of opposition or replying affidavit.
6. I have gone through the Applicant’s application as well as the submissions by the Applicant. Though this application is unopposed, the court must be satisfied that the Applicant has met the threshold for grant of conservatory orders. The Applicant has opted to seek conservatory orders as opposed to injunctory orders. Conservatory orders are ordinarily given in constitutional petitions.
7. In the instant case, the Applicant is seeking to be declared as having acquired a portion of the suit property by way of adverse possession. It is important to note that the registered owner of the suit property is Wanjiru Mwaura who died on 7th August, 1990. The process of succession began in 2020. Grant of letters of administration were given on 16th February, 2021.
8. Thereafter the process of confirmation of grant commenced and the estate of the deceased has been distributed. The Applicant contends that he purchased a portion measuring 1. 75 acres from Samwel Chege Mwaura on 28th February, 2004 and a similar portion of 1. 75 from Julius Karanja Mwaura on 8th October, 2004 making a total of 3. 5 acres. As at this time, the process of succession had not started. The chief who is alleged to have witnessed the alleged sale is one Paul K. Sang of Barsombe location. This is the same chief who in 2020 identified the beneficiaries of the estate of the late Wanjiru Mwaura in a letter dated 23rd January, 2020. It is this same chief who in the company of police assisted surveyors to enter the suit property and carry out subdivision. There is something which is not adding up.
9. The Applicant appears to have been ejected from the suit property which has already been distributed to the beneficiaries including one who appears to have been a purchaser of 3 acres of the suit property. In the circumstances, the Applicant has not demonstrated that any of his constitutional rights have been violated or threatened with violation as to call for grant of conservatory orders. I therefore find no merit in this application which I dismiss with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 11TH NOVEMBER, 2021
E.O. OBAGA
JUDGE
IN THE VIRTUAL PRESENCE OF;
MR. MARITIM FOR APPLICANT
COURT ASSISTANT – MERCY
E.O. OBAGA
JUDGE