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ELCDismissedPetition No. 15 of 3013 (as printed; evidently 2013)· [2014] KEELC 631 (KLR)

Gatarakwa Farmers Company Ltd v Attorney General And 8 Others [2014] KEELC 631 (KLR)

High Court of Kenya, Environment and Land Court at Nyeri
17 October 2014
3,074 words in judgment
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The bottom line

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The High Court refused emergency freezing and injunction orders because a company claiming land taken in 1986 waited nearly three decades to act and couldn't prove its standing.

What this practically means

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Executive summary

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This is a ruling by A. Ombwayo, J of the Environment and Land Court at Nyeri dated 17 October 2014, dismissing an application dated 28 October 2013 in Petition No. 15 of 2013 brought by Gatarakwa Farmers Company Ltd against the Attorney General and 8 others. The application sought Mareva-type freezing orders over assets of the 2nd respondent valued at Kshs.350 million, arrest of the 7th and 8th respondents to furnish security, disclosure and search-and-seizure orders over the respondents' Nairobi and Mweiga premises, an order for production of road construction equipment, and injunctions restraining the 2nd respondent from entering, remaining on, excavating or crushing ballast on Uaso Nyiro/Suguroi/Block VI/3027 pending the hearing of the petition. The petitioner claimed the Government compulsorily acquired its 32 farms (85,843 acres) between 1986 and 1987 without compensation or constitutional compliance, became a constructive trustee, and fraudulently allowed the suit property, reserved for dam and quarry purposes, to be leased to the 2nd respondent for quarrying. The respondents contested the petitioner's existence and directorship and pleaded res judicata and sub judice. Applying the Giella principles, the court found no prima facie case: the alleged acquisition, compensation and breach of trust were matters for trial; Wang'ondu's authority to sue for the company was disputed; the quarry use appeared consistent with the reserved public purpose; and the applicant had been inactive for 28 years, equity aiding the vigilant. The court also viewed the matter as a property claim rather than a constitutional petition, requiring established nexus to the land. The application was dismissed with costs.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case established; the applicant's allegations of unlawful compulsory acquisition, breach of trust and fraud are contested and can only be proved at the main hearing

Reasoning

The court applied the Giella principles. The claim chiefly challenges the lease granted to the 2nd respondent through the self-help group respondents, while the Government placed care of the land with the community. The circumstances of the alleged 1986 acquisition, payment or non-payment of compensation, and whether the quarry use is inconsistent with the reserved dam and quarry purpose are matters requiring proof at trial. Damages could compensate any claim.

p. 4
02

Locus standi and authority to sue

Holding

Stephen Kinini Wang'ondu must establish authority to sue on behalf of the applicant; his directorship is disputed, and this is a land claim requiring nexus to the interest in the land

Reasoning

The respondents challenged Wang'ondu's standing as director, since he is not on the last list of directors filed in 1986. The court held that although the Constitution widened locus standi, this is not truly a constitutional petition but a property claim, in which the petitioner must establish nexus to the land and authority from the company. The issue is provable at the main hearing.

p. 5
03

Nature of the claim - constitutional petition or property claim

Holding

The claim is essentially a claim in property, not a constitutional petition per se

Reasoning

The court reasoned that every right is embedded in the Constitution but not every claim of breach of a right constitutes a constitutional petition. Because this is a land claim, the petitioner must establish a nexus to the interest in the land, since the Constitution protects rights in land as private rights.

p. 5
04

Delay and vigilance

Holding

The applicant's 28 years of inactivity following the alleged takeover weighs against the grant of equitable relief

Reasoning

The court noted there was no correspondence from the applicant following up the alleged compulsory acquisition, and the doctrine that equity helps the vigilant applied. Any failure to compensate could be remedied by damages.

p. 5

Legal principles established

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  • A party claiming relief in respect of land must establish nexus to the interest in the land to establish locus standi and capacity to sue
  • Equity assists the vigilant; prolonged inactivity in pursuing a claim over property weighs against interim relief

Court orders

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  1. 1.The application dated 28/10/2013 seeking injunctive, Mareva and ancillary orders is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Former Constitution of Kenyasection 75 (Article 75)
  • Registered Land Actnot specified
  • Land Acquisition Actnot specified

Cases cited (5)

  • Punch Nigeria Ltd vs AG
    (1966) Commonwealth Human Rights Digest 46
  • Entick vs Carrington
    (1765) 19 St. Tr. 1030
  • Commissioner of Lands Vs Coastal Aquaculture Limited
    Civil Appeal No. 252 of 1996 (KLR Land and Environment 264)
  • Methodist Church in Kenya Vs AG and Others
    Meru HC Petition No. 4 of 2010
  • Giella vs Casmann Brown & Others
    [1975] EA 358
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (petition filed in the ELC); no specific provision cited

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, "Gatarakwa Farmers Company Ltd v Attorney General And 8 Others [2014] KEELC 631 (KLR)", Case Analysis (2014). Petition No. 15 of 3013 (as printed; evidently 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/631/eng@2014-10-17

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