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ELCDismissedELC Case of 2015 (Nakuru)· [2016] KEELC 1200 (KLR)

Paul Kiprop Chesire & 72 Others (All being member of Kokwenbei Community Based Organization) v National Land Commission & another [2016] KEELC 1200 (KLR)

Environment and Land Court
19 January 2016
MSMUNYAO SILA
1,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to protect community members from eviction because earlier court judgments had already ruled against them—appeal, not new applications, was the proper route.

What this practically means

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Executive summary

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The plaintiffs, members of Kokwen-Bei Community Based Organization claiming L.R No. 10939 as ancestral land taken during the colonial period, filed a suit seeking investigation of historical injustice by the National Land Commission (1st defendant), revocation of the 2nd defendant's (Lomolo Limited's) title, and a permanent injunction against eviction. By a notice of motion dated 10 June 2015 under Order 40 Rule 1 of the Civil Procedure Rules, they sought an interim injunction restraining the 2nd defendant from evicting them or interfering with their possession pending trial, alleging demolitions, burning of land and livestock killings. The 2nd defendant opposed, arguing the claim was barred by the Limitation of Actions Act, res judicata, and that prior suits had determined the parties' rights. The court applied the Giella vs Cassman Brown principles. It noted that in Nakuru HCCC No. 152 of 2006 (consolidated with HCCC No. 36 of 2007), Ouko J had on 24 January 2014 dismissed the plaintiffs' adverse possession claim, declared them trespassers and issued a permanent injunction, and that in Nakuru HCCC No. 98 of 2013, Waithaka LJ had on 10 December 2014 dismissed a similar suit as res judicata. The court held that the plaintiffs' entitlement to remain on the land was already settled and that granting the injunction would amount to staying valid judgments of the court's predecessors, which it had no jurisdiction to do; the plaintiffs' remedy was appeal. The application was dismissed with costs.

Key legal issues

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Whether the plaintiffs could obtain an injunction over the suit property despite previous judgments and a permanent injunction against them

Holding

The application was dismissed because the plaintiffs' entitlement to remain on the land had already been settled in prior litigation; an injunction would effectively stay the earlier valid judgments.

Reasoning

The court applied the Giella vs Cassman Brown principles but held that the threshold of a prima facie case could not be met since two prior judgments (Ouko J, 24 January 2014; Waithaka LJ, 10 December 2014) had dismissed the plaintiffs' adverse possession claims, declared them trespassers, and issued a permanent injunction against them. Granting an injunction would amount to staying those judgments, which the court lacked jurisdiction to do; the plaintiffs' remedy was appeal.

p. 3

Legal principles established

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  • To succeed in an application for injunction, the applicant must demonstrate a prima facie case and irreparable loss; if in doubt, the court decides on a balance of convenience (Giella vs Cassman Brown).
  • A court of concurrent jurisdiction cannot grant an interlocutory injunction that effectively stays or goes against a valid judgment already delivered by a court of competent jurisdiction; the remedy is appeal.

Court orders

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  1. 1.The application for injunction dated 10 June 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Limitation of Actions Act12-year period for claims over land

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nakuru High Court Case No. 152 of 2006 (OS)
  • Nakuru High Court Case No. 36 of 2007
  • Nakuru High Court Case No. 98 of 2013 (OS)
  • Nakuru ELC Judicial Review No. 3 of 2015
Jurisdiction invoked
Environment and Land Court jurisdiction under Order 40 Rule 1 of the Civil Procedure Rules, 2010 (injunction application)

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, "Paul Kiprop Chesire & 72 Others (All being member of Kokwenbei Community Based Organization) v National Land Commission & another [2016] KEELC 1200 (KLR)", Case Analysis (2016). ELC Case of 2015 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1200/eng@2016-01-19

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