1.Vide the Notice of Motion dated 31st August, 2020 filed by the Petitioners under the provisions of Rules 4, 5, 13 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Applicants seek the following Orders: -i)spentii)spentiii)THat this Honourable Court be pleased to grant a temporary injunction restraining the 1st and 2nd Respondents by themselves, their servants and/or agents or anybody authorized by them from entering or remaining upon the Applicants’ parcel of land or using the same for any purpose whatsoever which is inconsistent with the Petitioners’ constitutional and property rights whether by their employees, servants or agents or their visitors or others claiming, constructing, evicting, selling, transferring, carrying out destruction and/or any further dealing on the land interfering with the Applicants’ quiet use and occupation of Emali parcel of land, Land Reference No. 12970 (IR No. 4109) pending hearing and determination of this petition.iv)That this Honourable Court be pleased to grant an Order prohibiting the 1st Respondent herein precluding it, its officers, servants and/or its agents from awarding Tender No. SEKU/PROC/008/2020/2020 to any person or entity in reference to Emali parcel of land, Land Reference No. 12970 (IR No. 4109) pending hearing and determination of this application inter partes.v)That this Honourable Court be pleased to grant an Order prohibiting the 1st Respondent herein precluding it, its officers, servants and/or its agents from awarding Tender No. SEKU/PROC/008/2020/2020 to any person or entity in reference to Emali parcel of land, Land Reference No. 12970 (IR No. 4109) pending hearing and determination of this petition.vi)Costs of this application.
2.The application is supported by the affidavit of Julius S. Kasuni sworn on 31st August, 2020. It is premised upon these salient grounds. Firstly, that the Petitioners are members of Ene Nthi Kinyoo Farmers Society which is duly registered under the Societies Act Cap 108 Laws of Kenya. That the Petitioners are land owners in the suit property known as LR No. 12970 measuring 4,500 acres and the primary objective of the Society is to agitate for the rights of its members. That the Petitioners are the bona fide owners of the suit property which is ancestral land bequeathed to them by their forefathers who initially inhabited the land since precolonial times.
3.It was further averred that the suit property was not available for acquisition by the Commissioner pursuant to the Crown Lands Ordinance, 1902 which the British Government used to alienate Kamba land to European settlers. That the graves of the Applicants’ forefathers can even be traced on the land. That after independence, in 1985, the defunct Masaku County Council illegally, fraudulently and through a corrupt scheme allocated the suit land to Ukambani Agricultural Institute (UKAI) without any consultation with the Petitioner. That members of the Petitioner have been living in the suit property as a community for decades practicing their culture and sustaining their livelihoods.
4.The Applicants further averred that in 1995 when the District Commissioner realized that UKAI failed in its mission, and that the directors were hell-bent on converting the land into individual use, he authorized the local community to use the land for farming pending the issuance of title deeds. That in 2011, in a meeting with the 1st Respondent at Emali after the realization that UKAI had wound up and illegally handed ownership of the suit property to the 1st Respondent, the Applicants challenged the said handing over with the support of then Councilor Mr. Alois Mwaiwa and Prof. Kivutha Kibwana, then Presidential Advisor.
5.The Applicants averred that in the said 2011 meeting, it was resolved that the local farmers would cede 200acres of the suit property for the construction of Makueni University and not SEUCO. That sometimes in June 2020, the 1st Respondent issued a public notice directing the Applicants to bring down all their structures in the suit property, which were alleged to be illegal. The Applicants were also directed to stop their farming activities with the 1st Respondent intending to enter and develop the suit property upon expiry of the notice. The said notice also expressed threat of demolition and destruction to structures that would not have been in compliance.
6.It was averred that in response, the Applicants wrote a letter dated 9th June, 2020 to the 1st Respondent requesting the withdrawal of the earlier notice because a petition on ownership was already pending determination with the 2nd Respondent. That on 18th August, 2020, the 1st Respondent published a tender notice being Tender No. SEKU/PROC/OO8/2020/2021 for the construction of security houses and for the fencing of the suit property.
7.The Applicants averred that if the threat of eviction by the 1st Respondent is accomplished, then the Applicants will be rendered homeless in addition to other violations of their constitutional rights. That the 1st Respondent is acting without due regard to the rule of law and procedure and with impunity. Lastly, it was contended that should the orders sought be disallowed, the 1st Respondent will continue to infringe on the Applicants’ constitutional rights.
8.In a replying affidavit sworn by Prof. Geoffrey M. Muluvi on 11th September, 2020, it was deposed that the 1st Respondent is the successor to South Eastern University College which also succeeded Ukamba Agricultural Institute. That among the assets inherited by the 1st Respondent was the suit property herein LR No. 12970 situate in Emali, Makueni County. That the said land was donated to the 1st Respondent for education purposes by the former Masaku County Council and issued in the name of then trustees of UKAI for a term of 99 years from 1st February, 1985.
9.It was further averred that Petitioners had not produced any legal documents to support their claim over the suit property and neither had they satisfactorily proved the prerequisites of what amounts to community land as per the provisions of the Constitution and the Community Land Act No. 27 of 2016. That the Petitioners cannot claim infringement of their proprietary rights in the suit property when they never had those rights. Again, the 1st Respondent contended that the public notice dated 8th June, 2020 was issued to three individuals who had encroached into the suit property and not to the Applicants who have not settled there.
10.The 1st Respondent further averred that Applicants cannot invoke the doctrine of adverse possession over the suit property which is public land. That the 1st Respondent does not have any statutory or constitutional mandate to compulsorily acquire land more so the suit property as such powers are vested in the 2nd Respondent. That for close to four decades, no objection to the 1st Respondent’s Grant was raised with the Masaku County Council until the year 2016 when the first petition over the suit property was brought by the Petitioners before the 2nd Respondent. That the suit herein is incompetent on the score that a similar petition over the suit property involving the same parties is before the National Land Commission, and the same is yet to be determined.
11.That the Petition is also incompetent on account of the fact the claims of historical land injustices remain within the mandate of the 2nd Respondent. Further, the 1st Respondent averred that the Applicants have not produced evidence of the authority to institute these proceedings and to swear the supporting affidavit dated 31st August, 2020 on behalf of Ene Nthi Kinyoo Farmers Society. That the cancellation of Tender No. SEKU/PROC/008/2020/2021 would greatly prejudice the 1st Respondent because the procurement process is in its final stages ultimately violating the procurement laws and hence cause unnecessary legal proceedings against the 1st Respondent.
12.Lastly, the 1st Respondent argued that the Applicants had failed to satisfy the grounds for granting temporary injunctions as they have not established a prima facie case. It was argued that the proceedings are an abuse of the process of this Court
13.On 22nd September, 2020, the 3rd, 4th and 5th Respondents filed Grounds of opposition on the basis of the following inter alia: -i)That the application is frivolous, vexatious and an abuse of court process.ii)That the Applicants have not demonstrated any grounds for the grant of the orders of injunction.iii)That the Applicants are not lawful proprietors of the suit land and any will halt the 1st Respondent from putting its land to lawful use.
14.Vide a replying affidavit sworn by Alex Nthiwa, the Chief Officer of the Interested Party on 13th October, 2020, it was deposed that the Interested Party was aware that the 2nd Respondent had not rendered a determination on the Petitioner’s claim over the suit property based on a claim of historical injustice. That ever since 2013, in the course of various engagements with various stakeholders, it was agreed that the Interested party would allocate alternative land to the 1st Respondent for purposes of establishing a university campus within Makueni County. That it was therefore his belief that the Petition herein is merited.
15.The Petitioner filed a further affidavit sworn by Julius S. Kasuni on 12th November, 2020. It was deponed that Ukambani Agricultural Institute (UKAI) acted in breach of the special conditions attached to the Grant issued on 1st February, 1985 and therefore the suit property ought to have reverted to the defunct Masaku County Council. That it has come to the Petitioner’s knowledge that UKAI has been issuing membership cards to private individuals for the purchase of shares with a view of selling and/or disposing the suit property. Further, it was conceded that the Petitioner did lodge a claim with the 2nd Respondent which is pending determination but that the claim does not oust the jurisdiction of this Court to hear and determine the instant Petition.
16.In further response, the 1st Respondent filed a further replying Affidavit sworn by Prof. Geoffrey M. Muluvi on 23rd November, 2020. It reiterated that the 1st Respondent has never lost its ownership rights over the suit property and that the Petitioner cannot claim ownership over public land. Lastly, the 1st Respondent reiterated that given that a similar petition was lodged before the 2nd Respondent by the Petitioner, if allowed to proceed, this suit would be sub judice.
17.On 7th January, 2021, the 1st Respondent filed its submissions to the application. The counsel for the 1st Respondent submitted that the Petitioner has not produced any evidence of written authority from the said Society authorizing its representatives to file this suit. That the said omission is contrary to the requirements of Sections 41 (1) and (2) of the Societies Act Cap 108 Laws of Kenya. That in the absence of evidence of such authority from the Petitioner, the outlined representatives of the Petitioner have no locus standi to institute these proceedings which are therefore a nullity.
18.It was further submitted that the 1st Respondent’s Title to the suit property is indefeasible under the provisions of Section 26 (1) of the Land Registration Act, 2012. That the Petitioner had not substantiated its claim to the suit property.
19.Moreover, the 1st Respondent submitted that due to the pending petition before the 2nd Respondent by the Petitioner herein over the same subject matter, this Court is precluded from hearing these proceedings as to do so would be sub-judice and against the clear provisions of Section 6 of the Civil Procedure Act. Lastly, the 1st Respondent submitted that the Petitioner has not established a prima facie case with the likelihood of success and neither had they demonstrated how they would be prejudiced if the orders sought are denied.
20.The 1st Respondent further placed reliance on the list and bundle of authorities filed in Court on 7th January, 2021 to buttress their submissions.
21.Vide the submissions dated 27th January, 2021, the Interested Party argued that the Petitioner had satisfied the criteria for grant of conservatory orders. That the proportionality of the competing interests favours issuance of conservatory orders because the Petitioner would suffer irreparably if evicted from their homes while the 1st Respondent would suffer no harm because it does not utilize the suit property.
22.None of the authorities cited by the Interested Party were annexed to the submissions and as such, they have been disregarded.
23.The Petitioner’s submissions were filed in Court on 21st April, 2021. The counsel for the Petitioner argued that the Petitioner had demonstrated the requirements for the grant of injunctive reliefs. That a prima facie case with high chances of success was established by virtue of their ancestral claim to the suit property. That no university in Kenya owns such vast tracts of land in this particular instance, 4,500 acres.
24.It is further submitted that in the event that the application is disallowed, the 1st Respondent will enforce the eviction notices causing irreparable loss to the Petitioner. Lastly, it was submitted that the balance of convenience shifts in favour of the status quo being maintained. That the 1st Respondent only moved to take possession of the suit property in June 2020 when the public notice was issued directing the Petitioner to demolish all its structures in the suit property.
25.Again, none of the authorities that were cited by the Petitioner were annexed thus, they are disregarded.
26.On 27th April, 2021, the 3rd, 4th and 5th Respondents filed their submissions. The State Counsel contended that the Petitioner had not met the threshold for grant of the injunctive orders sought as enunciated in the case of Giella v Cassman Brown & Co. Ltd  EA 358. It was argued that the Petitioner did not produce evidence of ancestral ownership of the suit property. That evidence of irreparable loss was also not substantiated. That the balance of convenience tilts against issuing the injunctive reliefs because it is the 1st Respondent who would suffer for stalled developments and the advancement of education in the country.
27.Lastly, it was argued that the jurisdiction of this Court does not extend to halting a tendering process either under the Constitution or vide the Environment and Land Court Act, 2011. No authorities were annexed to the 3rd, 4th and 5th Respondents’ submissions.
28.The primary issue for determination is whether the Applicants have demonstrated a prima facie case to warrant issuance of the orders sought.
29.The test for granting the conservatory orders must align with the decision of the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others  eKLR. The following excerpt of the learned Judges’ findings is especially succinct: -
30.In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another  eKLR Justice G.V. Odunga held as follows: -
31.Justice G.V. Odunga goes on to endorse the following observations made by other learned members of the Bench: -
32.In the above respect, the 1st Respondent is inarguably the registered proprietor of the suit property as evidenced by the title deed annexed to the replying affidavit.
33.Section 26(1) of the Land Registration Act, 2012 perfectly sums up the fate of this application. The said provision of statute outlines as follows: -
34.I have grappled with the basis upon which the Petitioner founded its claim against the 1st Respondent without any proof of that they had ancestral rights to the suit property in the first place. I have also pondered as to why the Petitioner’s rights were never registered as either special conditions to the Grant in 1985 or why no objections were raised to the issuance of the Grant in the first place.
35.In any event, I would take relief in the fact that the Petitioner has raised its claim with the 2nd Respondent to address the underlying historical land injustice which may have resulted in the issuance of the 1st Respondent’s title deed. All the parties herein have conceded that there is a pending claim by the Petitioner before the National Land Commission in the basis that there was a historical land injustice which occasioned the loss of the Petitioner’s land. No doubt that the 2nd Respondent has the technical competence and expertise to investigate and resolve the Petitioner’s claim in accordance with Section 15 of the National Land Commission Act, 2012.
36.Since the 2nd Respondent would as well be in a position to recommend the appropriate redress in the event of a finding that there was a historical land injustice, I am minded to sustain the 1st Respondent’s argument that proceeding with the instant application and the Petition would be sub judice and contrary to Section 6 of the Civil Procedure Act. For now, this Court’s hands are tied by virtue of Section 26(1) of the Land Registration Act, 2012.
37.I have adopted the view that was taken by the Court of Appeal in Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others  eKLR where it was held as follows: -
38.I would also sustain the argument by the State Counsel for the 3rd, 4th and 5th Respondents that this Court is divested of jurisdiction to intervene on matters of public procurement as sought under prayers 4 and 5 of the instant application. The jurisdiction of this Court is delineated at Section 13 of the Environment and Land Court Act. I would therefore endorse the finding of Justice J.G. Kemei in Benmark Murikwa Nganga v Attorney General & 4 others  eKLR where the Court held as follows: -
39.I therefore find the instant application devoid of merit. It is hereby dismissed with costs.