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ELCDismissedPetitioners' Notice of Motion dated 21st June 2017 (not fully stated in judgment)· [2019] KEELC 4277 (KLR)

Daniel Ngotiek Nchui & 3 others v National Oil Corporation of Kenya & another [2019] KEELC 4277 (KLR)

Environment and Land Court
6 March 2019
COChristine Ochieng
1,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioners, registered representatives of Ol Donyo Nyokie Group Ranch, moved the Court by Notice of Motion dated 21st June 2017 seeking injunctive orders against the 1st Respondent, alleging that the Respondent entered their land parcel Kajiado/Oldonyo-Nyokie/3 (68,627.974 hectares) in May 2017, set up camp in the Ol Kirimatian area and began prospecting for petroleum without notice, consultation or due process, contrary to section 4 of the Fair Administrative Action Act, and without providing security for damage to land, crops, buildings and stock. The 1st Respondent opposed the application through its Company Secretary, Pauline Kimotho, who stated that NEMA had on 17th August 2016 issued an Environmental Impact Assessment licence for seismic survey in Block 14T, Magadi area; that the licence had not been appealed to the National Environment Tribunal; that no licence conditions were breached; and that the Petitioners had not proved ownership or encroachment, having failed to supply GPS coordinates, title documents or survey maps. The Court framed one issue: whether the Petitioners were entitled to a temporary injunction pending the Petition. Applying Giella v Cassman Brown, the Court held that no prima facie case was shown, as the exact area of exploration and documentary proof of the activities were not provided and the EIA licence was unchallenged. On irreparable injury, applying Nguruman, the alleged injuries were speculative and not demonstrable. On balance of convenience, following Simon Otwori, the project serves the greater public benefit. The application was dismissed with costs in the cause.

Key legal issues

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01

Prima facie case with probability of success

Holding

No prima facie case established - title was furnished but the exact area of alleged exploration and documentary proof of the activities were not provided, and the EIA licence was not challenged

Reasoning

Although the Petitioners produced a title deed proving ownership of the suit land, they did not indicate the exact acreage where exploration was alleged to be occurring or furnish documentary proof of the alleged activities. The existing EIA licence permitting exploration was unchallenged before the National Environment Tribunal, so the court could not find a prima facie case warranting an injunction.

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02

Irreparable loss not compensable by damages

Holding

Alleged injuries were speculative and not demonstrable

Reasoning

The Petitioners failed to demonstrate the portion of land allegedly trespassed upon and did not provide a list of non-community members allegedly hired. The 1st Respondent denied working on the suit land and had requested GPS coordinates which the Petitioners never supplied. Consequently the injuries alleged were speculative rather than actual, substantial and demonstrable.

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03

Balance of convenience

Holding

Balance does not tilt in favour of the Petitioners because the project serves the greater public benefit

Reasoning

Following Simon Otwori & 7 others v Lake Victoria South Weather Service Board & 6 others [2018] eKLR, where an injunction was refused because the disputed project was for public benefit, the court found that the oil exploration project was for the greater public benefit and the balance of convenience therefore did not favour the Petitioners.

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Legal principles established

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  • Temporary injunction principles: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience where the court is in doubt
  • Irreparable injury must be actual, substantial and demonstrable; speculative injury will not suffice and the burden lies on the applicant

Court orders

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  1. 1.The Notice of Motion application dated 21st June 2017 is dismissed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land (Group Representatives) Actnot specified
  • Fair Administrative Action ActSection 4
  • Petroleum Actnot specified
  • Environmental Management and Coordination Act (EMCA)appeal to National Environment Tribunal

Cases cited (3)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Simon Otwori & 7 others v Lake Victoria South Weather Service Board & 6 others
    [2018] eKLR
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law

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, "Daniel Ngotiek Nchui & 3 others v National Oil Corporation of Kenya & another [2019] KEELC 4277 (KLR)", Case Analysis (2019). Petitioners' Notice of Motion dated 21st June 2017 (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4277/eng@2019-03-06

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