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ELCAllowedNot stated in the judgment (Notice of Motion dated 20th December, 2017 in the suit)· [2018] KEELC 1524 (KLR)

Olonana Limited v Mara Rafiki Limited [2018] KEELC 1524 (KLR)

Environment and Land Court of Kenya
9 August 2018
MKMohamed N. Kullow
837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted a hotel operator interim protection against a rival claiming the same leased land, finding 20 years of occupation enough to preserve the status quo.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff/Applicant's Notice of Motion dated 20th December, 2017, brought under Order 40 and Order 51 of the Civil Procedure Rules, seeking a mandatory injunction compelling the Defendant to remove construction materials and structures deposited on the banks of River Mara and an injunction restraining trespass on LR Trans Mara/Kimintet 'D'/479 pending the hearing of the suit. The Applicant, operator of Camp Olonana Sanctuary, contended it had leased about 100 acres from the Enkutoto Eco Tourism Trust for 20 years, that a trustee had illegally leased 20 acres along the Mara River to the Respondent, that the Respondent was defying a 2010 moratorium issued by the County Government of Narok, and that an order of the Principal Magistrate's Court at Narok (Civil Suit No. 147 of 2017) had already restrained the Defendant from dealing with the land. The Respondent countered that it leased the suit land from the same Trust after due diligence following guidance from the Kenya Investment Authority, that two leases over one parcel could not coexist, and that the project lay outside the Maasai Mara Game Reserve with an environmental impact assessment conducted. Applying the Giella v Cassman Brown principles, the court held that although two conflicting leases over the same land had to be resolved at a full hearing, the Applicant's 20 years of occupation and the absence of evidence of its termination established a prima facie case with probability of success, and that damages would adequately compensate the Respondent. The application was allowed in terms of prayers 5, 6 and 7, with costs in the cause.

Key legal issues

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01

Whether a prima facie case with probability of success was established

Holding

The court found the Applicant had established a prima facie case with a probability of success based on 20 years of occupation of the suit land and the absence of evidence from the Respondent of termination of that occupation

Reasoning

Both the Applicant and the Respondent produced lease agreements over the same land, creating conflicting claims that could only be resolved at a full hearing with evidence from the Landlords. However, the Applicant had been in occupation running a hotel establishment for 20 years and the Respondent did not show evidence of termination of the Applicant's occupation. On this basis the Applicant satisfied the first Giella criterion and benefited from the court's discretion.

p. 2
02

Whether damages would be an adequate remedy

Holding

Although the Applicant gave no undertaking as to damages, the court found the Respondent could adequately be compensated by way of damages, satisfying the second Giella criterion

Reasoning

Applying the Giella v Cassman Brown test, the court considered whether damages would suffice if the injunction were wrongly granted. The Applicant had not given an undertaking to damages, but the court nonetheless found that the Respondent could adequately be compensated by an award of damages, and thus proceeded to allow the application in terms of prayers 5, 6 and 7 with costs in the cause.

p. 2

Legal principles established

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  • Where two conflicting leases exist over the same land, that conflict can only be resolved at a full hearing; pending determination, established long occupation may found a prima facie case for injunctive relief

Court orders

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  1. 1.The Notice of Motion dated 20th December, 2017 is allowed in terms of prayers 5, 6 and 7
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules (1), (2), (3) and (4)
  • Civil Procedure RulesOrder 51 Rules 1, 3 and 4

Cases cited (1)

  • Giella –Versus- Cassman Brown & Company Limited
    (1973) E.A. 358
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; interim relief sought under Order 40 Rules (1), (2), (3), (4) and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules

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, "Olonana Limited v Mara Rafiki Limited [2018] KEELC 1524 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 20th December, 2017 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1524/eng@2018-08-09

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