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ELCDismissedCivil Case No 199 of 2015· [2017] KEELC 1520 (KLR)

Kimitei Rotich & 2 others v Board of Governors, Cheborwo Agricultural Training Centre & 4 others [2017] KEELC 1520 (KLR)

Environment and Land Court of Kenya
22 September 2017
3,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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An Eldoret court refused to stop fencing of the Chebororwo Agricultural Training Centre farm, finding the community showed long use of the land but no legal ownership rights.

What this practically means

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Executive summary

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The plaintiffs, suing on behalf of the Chebororwo community, sought a temporary injunction restraining the defendants, their agents and the County Government of Uasin Gishu (1st Interested Party) from fencing off, wasting or alienating Chebororwo Agricultural Training Centre Farm VR 2210 and VR 3047 pending determination of the suit. They claimed the 2,500-acre farm was community land used since time immemorial for grazing, cultivation, water, firewood, shrines and burials, and objected to the construction of an electric fence around the whole farm without their consent or an environmental impact assessment. The 1st defendant and the 1st Interested Party contended the land was alienated government land designated for the ATC by Legal Notice No. 751 of 1963, managed by the institution since 1957 and devolved to the county, with multi-million shilling public projects now stalled. The 2nd Interested Party (Elgeyo Marakwet County) supported preservation of status quo, asserting the institution lies within its territory and that fencing lacked public participation. Applying the principles for temporary injunctions, the court held the plaintiffs had shown only long user, not rights, over land designated as alienated government land; that no prima facie case with likelihood of success was established; that any loss was compensable by damages or alternative land; and that the balance of convenience and public interest favoured refusing the injunction. The application was dismissed with costs on 22 September 2017.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a likelihood of success

Holding

They did not; they showed only long user of the land but no proprietary rights, and the land was designated alienated government land under Legal Notice No. 751 of 1963

Reasoning

The court found the land was delineated and designated as public land for the Chebororwo Agricultural Training Centre by Legal Notice No. 751 of 1.6.1963. The plaintiffs demonstrated only historic utilisation for grazing, cultivation and shrines but produced no evidence of ownership or community land registration. Without a demonstrable right over the property, no prima facie case with probability of success was established.

p. 6
02

Whether the plaintiffs would suffer irreparable injury not compensable by damages

Holding

No; any loss could be compensated by damages or alternative land

Reasoning

The court held that even assuming the community succeeded, its loss of grazing and access could be met by an award of damages or allocation of alternative land for grazing. Attachment to graves and shrines did not persuade the court that compensation was impossible, so the second Giella condition failed.

p. 6
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Where the balance of convenience lies

Holding

It tilts against granting the injunction because the land serves the public interest as a designated agricultural training facility

Reasoning

The court reasoned that granting the injunction would stall public projects worth millions of shillings on land designated for public agricultural purposes. The plaintiffs' private interests could not override the public interest in the institution serving Kenyans in agriculture and livestock, so the balance favoured refusing the injunction.

p. 6

Legal principles established

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  • A prima facie case for temporary injunction means a serious question to be tried, not a case proved to the hilt, and the burden lies on the plaintiff to establish it
  • Irreparable injury must be one that cannot be adequately compensated in damages, and the existence of a prima facie case is not itself sufficient
  • Balance of convenience requires the plaintiff to show that the inconvenience caused to them if the injunction is withheld would be greater than that caused to the defendant if it is granted; where inconvenience is equal, the plaintiff suffers

Court orders

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  1. 1.The plaintiffs' application for a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the defendants/respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1); Fourth Schedule
  • Kenya (Designated Land) RegulationsLegal Notice No. 751 of 1st June 1963
  • Compulsory Acquisition Act (repealed)Section 6(2)
  • Land Act, 2012Section 107
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly cited in the judgment as provided)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kimitei Rotich & 2 others v Board of Governors, Cheborwo Agricultural Training Centre & 4 others [2017] KEELC 1520 (KLR)", Case Analysis (2017). Civil Case No 199 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1520/eng@2017-09-22

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