[2015] KEHC 1207 (KLR)
The court adopted the consent of the parties, which granted the petitioners interim conservatory orders restraining the respondent from interfering with their leasehold properties pending the hearing and determination of the petition. The basis for this order was the recognition of the petitioners' arguable claim to...
Source-derived case information.
- Citation
- [2015] KEHC 1207 (KLR)
- Parties
- Applicant: Solomon Kirera Mutungi; Applicant: Peter Mwongera; Applicant: James Muthuri M’Mungania; Applicant: Fredrick Mugambi Mairuki; Applicant: Fridah Gacheri; Applicant: Cornelius Muthuri Kirera; Applicant: Isaac M’Mbogori M’Itimitu; Applicant: Stephen Mworia; Applicant: Njagi Ngetu; Applicant: Patrick Gakuubi M’Kirinya t/a Pakelex Dry Cleaners; Applicant: Paul Gitonga; Applicant: Justus Mbaya Mugambi; Respondent: The Meru County Government
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 2 of 2015
- Procedural Posture
- Constitutional Petition / Interlocutory Application; Consent Order on Interim Relief
- Outcome
- Application allowed by consent; interim conservatory orders granted pending hearing of the petition.
- Judges
- FM Njoroge
- Legal Topics
- Right to Property, Conservatory Orders, Leasehold Titles, County Government Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Kirera Mutungi
Applicant
Peter Mwongera
Applicant
James Muthuri M’Mungania
Applicant
Fredrick Mugambi Mairuki
Applicant
Fridah Gacheri
Applicant
Cornelius Muthuri Kirera
Applicant
Isaac M’Mbogori M’Itimitu
Applicant
Stephen Mworia
Applicant
Njagi Ngetu
Applicant
Patrick Gakuubi M’Kirinya t/a Pakelex Dry Cleaners
Applicant
Paul Gitonga
Applicant
Justus Mbaya Mugambi
Applicant
The Meru County Government
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application; Consent Order on Interim Relief
Legal Issues
- 1 Whether the petitioners are entitled to conservatory orders restraining the respondent from interfering with their leasehold properties pending determination of the petition.
- 2 Whether the respondent has legal capacity to interfere with the petitioners' leasehold properties.
- 3 Whether the petitioners' rights to property under Article 40 of the Constitution have been threatened or violated.
Ratio Decidendi
The court adopted the consent of the parties, which granted the petitioners interim conservatory orders restraining the respondent from interfering with their leasehold properties pending the hearing and determination of the petition. The basis for this order was the recognition of the petitioners' arguable claim to property rights under Article 40 of the Constitution and the need to preserve the status quo to prevent irreparable harm. The respondent, by consenting, did not contest the interim relief at this stage, and the court found it appropriate to protect the petitioners' property rights until the substantive issues are determined. The consent also provided procedural directions for...
Court Disposition
Application allowed by consent; interim conservatory orders granted pending hearing of the petition.
Orders
- The application by the Petitioners dated 13th January 2015 is allowed in terms of Prayer 3 pending the hearing and determination of the Petition.
- There be no orders as to costs.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CONSTITUTIONAL PETITION NO. 2. OF 2015
IN THE MATTER OF ARTICLES 22 AND 23 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF PROTECTION OF THE RIGHTS TO PRIVATE PROPERTY UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010
AND IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20,22,23,40, AND 159 OF THE CONSTITUTION OF KENYA 2010
SOLOMON KIRERA MUTUNGI .............................................................1ST PETITIONER
PETER MWONGERA..............................................................................2ND PETITIONER
JAMES MUTHURI M’MUNGANIA ........................................................3RD PETITIONER
FREDRICK MUGAMBI MAIRUKI.............................................................4TH PETITIONER
FRIDAH GACHERI....................................................................................5TH PETITIONER
CORNELIUS MUTHURI KIRERA.............................................................6TH PETITIONER
ISAAC M’MBOGORI M’ITIMITU.............................................................7TH PETITIONER
STEPHEN MWORIA ................................................................................8TH PETITIONER
NJAGI NGETU...........................................................................................9TH PETITIONER
PATRICK GAKUUBI M’KIRINYA T/A PAKELEX DRY CLEANERS...1OTH PETITIONER
PAUL GITONGA ......................................................................................11TH PETITIONER
JUSTUS MBAYA MUGAMBI...................................................................12TH PETITIONER
VERSUS
THE MERU COUNTY GOVERNMENT.........................................................RESPONDENT
R U L I N G
This application is dated 13/01/2015 and seeks orders:-
1. THAT this application be certified urgent and service be dispensed with in the first instance.
2. THAT this Honourable Court be pleased to issue temporary conservatory orders to restrain the respondents, the County Minister of Lands and any other employee or agent of the Respondent from fencing off or interfere with the Petitioners rights over their leasehold properties namely L.R. No MERU MUNICIPALITY BLOCK 11/736, 719, 738, 732, 728, 725, 729, 730, 722, 735 and 737 pending the hearing and the determination of this application interparties.
3. THATthis Honourable Court be pleased to issue temporary conservatory orders to restrain the respondents, the County Minister of lands and any other employee or agents of the Respondents from fencing off or interfere with the petitioners rights over their leasehold properties namely L.R. No. MERU MUNICIPALITY BLOCK 11/736, 719, 738, 732, 728, 725, 729, 730, 722, 735 and 737 pending the hearing and determination of this petition.
4. THAT this Honourable Court be pleased to issue conservatory orders directed at the respondent to remove the bill board declaring the petitioners leasehold properties as the property of the Meru County Government pending the hearing and determination of this application and the main petition.
It is supported by the Affidavit of James Muthuri the 3rd Petitioner and has the following grounds:-
a) THAT the petitioner are the lawfully registered owners of their respective leasehold properties and the respondent is threatening and has started to fence off and block the petitioners from accessing their private property.
b) THAT the respondent’s predecessor relinquished its rights over the petitioners leasehold properties and the respondent has no legal capacity to interfere.
c) THAT the Petitioner’s have paid dearly for their respective properties whose certificates of lease were granted by the Government of Kenya which has never been revoked or compulsorily acquired.
d) The Petitioners have paid the requisite rents and rate to the respondent for the said properties and their predecessor the Municipal Council of Meru.
On 02/11/2015 the parties proffered a Consent dated 2/11/2015 which asked the Court to adopt as its order. The Consent is in the following terms:-
“By Consent”
1. THAT the application by the Petitioners dated the 13th day of January, 2015 be allowed in terms of Prayer 3 pending the hearing and determination of the Petition.
2. THAT there be no orders as to costs.
3. THAT the Petitioners be granted 30 days leave within which to file a Supplementary Affidavit to the Petition and leave to the Respondents to respond if need be.
The Consent is duly signed by the Advocates representing the parties.
The Consent is adopted as an order of this Court.
It is so ordered.
Delivered in open Court at Meru this 2nd day of November, 2015 in the presence of:-
CC: Lilian/ Daniel
Gikunda Anampiu for Petitioners
Laichema for Respondent.
P. M. NJOROGE
JUDGE