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ELCDismissedNot stated in the judgment· [2015] KEELC 742 (KLR)

Stephen P.Mparingoi & 2 others v Ministry Of Agriculture, Livestock Fisheries & 7 others [2015] KEELC 742 (KLR)

High Court of Kenya (court not expressly named in the judgment; presided over by L. Gacheru, Judge)
9 March 2015
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A community group failed to stop a land sale because it sued the wrong party and couldn't prove its claim could win.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15th April 2014 in which the plaintiffs, officials of the Ilkeekonyokie Welfare Association, sought temporary injunctions restraining the 4th Defendant from selling by public auction or private treaty land parcels Ngong/Ngong/1960, 2628 and 2629 at Embulbul, Ngong Road. The application was premised on Order 40 Rule 4(2) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act. The applicants deposed that the land had been set apart in the 1950s and 1960s for veterinary use, had been occupied by the Maasai community for grazing and cultural purposes since time immemorial, and that the 4th Defendant had advertised its sale in the Daily Nation on 14th April 2014. The 4th Defendant's Managing Director, Ramadhan Juma Ali, swore that the 4th Defendant held legitimate title, had charged the property to Barclays Bank of Kenya, and that it was the Bank, not the 4th Defendant, that advertised the sale; indeed the 4th Defendant had obtained an injunction in Civil Case No. 692 of 2012 restraining the Bank from selling. The 2nd Defendant filed grounds of opposition asserting the land was Government land for public use. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, L. Gacheru J found the applicants failed to establish a prima facie case with probability of success, failed to show irreparable loss not compensable by damages, and that the balance of convenience favoured the 4th Defendant. The application was dismissed entirely with costs to the 4th Defendant on 9th March 2015.

Key legal issues

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01

Whether the applicants had a prima facie case with probability of success

Holding

They did not; the land was public land set apart for veterinary use and part hived off to the 4th Defendant, but the infringement to be suffered was not established

Reasoning

The court accepted the land was set apart in the 1957/1960s Gazette Notice, making it public land. Though part was allocated to the 4th Defendant, whether that allocation was procedural could only be decided at trial. The court found the applicants failed to show the infringement they would suffer, given the 4th Defendant held title.

p. 4
02

Whether the applicants would suffer irreparable loss not compensable by damages

Holding

They would not; any loss could be compensated in monetary terms and compensation should be sought from the Government

Reasoning

The applicants alleged non-compensation when the land was set apart, but the 4th Defendant was not party to the original acquisition. The court held that if the applicants succeed at trial they can be compensated monetarily, so damages would be an adequate remedy.

p. 4
03

Balance of convenience

Holding

It tilts in favour of the 4th Defendant, who holds title and already enjoys an injunction against the Bank's sale

Reasoning

The advertised sale was by Barclays Bank of Kenya, not the 4th Defendant, and the High Court in Civil Case No. 692 of 2012 had already restrained the Bank from selling. The 4th Defendant therefore holds title and enjoys an injunction from a court of concurrent jurisdiction.

p. 4

Legal principles established

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  • In an interlocutory application the court is not required to determine the very issues which will be canvassed at trial with finality
  • Definition of a prima facie case in civil applications

Court orders

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  1. 1.The Notice of Motion dated 15th April 2014 is dismissed entirely with costs to the 4th Defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 4(2)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(c)

Cases cited (6)

  • CMC Motors Group Ltd & Another Vs Evans Kageche Boro
    Civil Appeal No. 295 of 2001 (2001) LLR 6109
  • Giella Vs Cassman Brown and Co. Ltd
    1973 EA 358
  • East African Development Vs Hyundai Motor Kenya Ltd
    Civil Appeal No. 194 of 2014; (2004) LLR 6121
  • EA Industries Vs Trufoods
    (1972) EA 420
  • Mrao Ltd Vs First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd
    Nairobi (Milimani) High Court Civil Case No. 1118 of 2002
Jurisdiction invoked
Order 40 Rule 4(2) of the Civil Procedure Rules 2010 and Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act

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, "Stephen P.Mparingoi & 2 others v Ministry Of Agriculture, Livestock Fisheries & 7 others [2015] KEELC 742 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/742/eng@2015-03-09

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