Kasaine Ole Seleka & 5 others v Daniel Kiria Leturesh & 7 others [2020] KEELC 530 (KLR)

Section 39(3) prioritises alternative dispute resolution for community land disputes. The court noted the suit was initiated by individuals, not a registered community; it was unclear whether the Group Ranch was a registered community under the 2016 Act; and the suit involved non-members of the Group Ranch. Therefore, the ADR framework in section 39(3) could not be used to bar the plaintiffs' access to the court at this stage.

The defendants argued that Ochieng J had made binding pronouncements on the validity of the elections. Upon review of the record, the court found that the Judge had only given directions on the disposal of the main suit on 23/5/2019 and had made no findings on the issues in the present application, so there was no prior determination capable of grounding res judicata.

Applying Giella v Cassman Brown, the court found that the certificate of incorporation issued on 21/11/2018 under the repealed Land (Group Representatives) Act (repealed effective 21/9/2016) may be an illegality, giving the plaintiffs a probability of success. Given the land resource belongs to a large group and a proper transition under the Community Land Act must be verified, denial of the injunction would risk irreparable injury, warranting preservation of the property.

Prayer 3 sought an order invalidating all actions of the defendants in relation to the suit land. The court held that granting such an order before trial would make the trial an academic exercise, since it would conclusively determine the substantive dispute. The prayer was therefore declined at the interlocutory stage.