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ELCOtherApplication dated 20th May 2016 (suit pending before the Environment and Land Court, Kisii)· [2017] KEELC 3574 (KLR)

John Lekodki ole Teleu (suing on behalf of Transmara Community Development Project) v Jonathan Paapai & 4 others [2017] KEELC 3574 (KLR)

Environment and Land Court
24 February 2017
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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When a Kenyan land dispute is too contested to resolve early, the court keeps things as they are until full trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kisii delivered by J. M. Mutungi, J on 24th February 2017. The 1st and 2nd defendants, by an application dated 20th May 2016, sought a temporary injunction restraining the plaintiff from interfering with the property Transmara/Poroko/39, setting aside an ex parte order of inhibition issued earlier, and striking out the plaintiff's suit. They asserted that Trans Mara Community Development (TMD) was a community based project which acquired the suit property in 2011 and built a children's home and school, and that the plaintiff, a past official who had resigned, was interfering with its operations. The plaintiff countered that he founded TMD as an NGO, was its sole owner of the suit property, had never resigned, and that the defendants were intruders. Each side had already sought injunctive relief against the other; the plaintiff's contempt application had been dismissed on 6th May 2016. The court, applying Giella vs Cassman Brown, held that the facts were so contested - including the status and management of TMD - that they did not fit the Giella criteria and that contested issues required evidence at trial. Invoking paragraph 32 of the Environment and Land Courts Practice Directions, the court ordered both sides to maintain the prevailing status quo, with the defendants continuing to run the children's home without interference from the plaintiff. Both applications were dispensed with; the inhibition remained in force pending trial; parties were directed to comply with Order 11 within forty five days; and each party was to bear its own costs of the interlocutory applications.

Key legal issues

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01

Whether the conditions for a temporary injunction under Giella vs Cassman Brown were satisfied

Holding

The court declined to grant a temporary injunction to either side because the facts were contested and did not fit the Giella criteria, opting instead for preservation of the subject matter through a status quo order

Reasoning

Both sides sought injunctive relief against each other over the control of TMD and the suit property. The dispute over whether TMD is an NGO or a community project, who its legitimate officials are and whether the plaintiff resigned raised contested factual questions that could only be resolved at trial after evidence was adduced. The court therefore invoked paragraph 32 of the ELC Practice Directions to order status quo, directing the defendants to continue running the children's home free of the plaintiff's interference, and kept the inhibition in place pending trial.

p. 2
02

Whether the plaintiff's suit should be struck out for lack of locus standi

Holding

The court did not strike out the suit; both applications were dispensed with and the matter directed to pre-trial and trial

Reasoning

The applicants contended the plaintiff had resigned from TMD and lacked locus standi, while the plaintiff claimed to be the founder and owner. These were contested issues of fact incapable of resolution at the interlocutory stage, requiring evidence at trial. Striking out was therefore inappropriate.

p. 3

Legal principles established

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  • Where issues are highly contested at interlocutory stage, the court will be slow to grant an injunction and will instead preserve the subject matter by ordering maintenance of status quo pending trial
  • Paragraph 32 of the Environment and Land Courts Practice Directions empowers the judge, where parties cannot agree, to exercise discretion to order status quo pending the hearing and determination of the suit

Court orders

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  1. 1.The parties to maintain and observe the prevailing status quo where the TMD project catering for the children's home shall continue without any interference from the plaintiff
  2. 2.The defendants presently in charge of operating and running the children's home to continue doing so until the suit is heard and determined
  3. 3.The parties to comply with Order 11 Civil Procedure Rules within the next forty five days of the date of the ruling and thereafter fix the matter for pre-trial directions
  4. 4.The application by the plaintiff dated 15th July 2015 and the application by the 1st and 2nd defendants dated 20th May 2016 dispensed with on the stated terms
  5. 5.The inhibition registered against the suit property to remain in force until the suit is heard and determined on merit
  6. 6.Each party to bear their own costs for the interlocutory applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSections 1A, 1B, 3A
  • Environment and Land Courts Practice DirectionsParagraph 32 (Gazette Notice No. 5178 of 28th July 2014)

Cases cited (1)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; interlocutory application under Order 40 Rule 1, Order 2 Rule 15 and Order 51 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B, 3A 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, "John Lekodki ole Teleu (suing on behalf of Transmara Community Development Project) v Jonathan Paapai & 4 others [2017] KEELC 3574 (KLR)", Case Analysis (2017). Application dated 20th May 2016 (suit pending before the Environment and Land Court, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3574/eng@2017-02-24

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