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ELCDismissedNot stated in the judgment text provided· [2020] KEELC 931 (KLR)

Gabriel Onsongo Okondo & 10 others v Sangiri Ole Kiok & 2 others [2020] KEELC 931 (KLR)

Environment and Land Court
21 October 2020
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Kajiado (Ochieng J) determined two Notices of Motion by the 1st Defendant, Sangiri Ole Kiok, against the 3rd Plaintiff, Amos Lemangen Ole Kaitei. The first, dated 23rd December 2019 under Order 40 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought an injunction restraining the 3rd Plaintiff from trespassing on land parcel Kajiado/Loodariak/123 pending the outcome of the suit. The second, dated 14th July 2020, sought the 3rd Plaintiff's committal to civil jail for up to six months for allegedly disobeying the court order of 2nd March 2020 by grazing cattle on the parcel. The 3rd Plaintiff, a registered proprietor of the neighbouring parcel Kajiado/Loodariak/2149, denied trespass, asserting there is no visible boundary between the parcels and that he had complied with the order. Framing three issues, the court applied Giella v Cassman Brown and found no prima facie case: both parties are registered proprietors in occupation of their respective parcels and the fulcrum of the suit is a boundary dispute whose resolution awaits the Land Registrar Kajiado North's reports. Invoking Rule 32 of the ELC Practice Directions, the court directed that the status quo be maintained, each party remaining on its own portion, and declined to consider the remaining Giella limbs. On contempt, applying North Tetu Farmers v Wanjohi and section 29 of the Environment and Land Court Act, the court held contempt proceedings are criminal in nature and the applicant bore the burden of proof; failing to particularise the alleged trespass and not controverting the denial of grazing, the 1st Defendant failed to prove the elements of civil contempt. Both applications were found unmerited and disallowed, with costs in the cause. The matter was scheduled for mention on 21st October 2020 for the Land Registrar to present his reports.

Key legal issues

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01

Entitlement to an interlocutory injunction pending determination of the suit

Holding

Injunction refused; no prima facie case established because the dispute is an undetermined boundary dispute, and status quo was directed instead under Rule 32 of the ELC Practice Directions.

Reasoning

Both parties are registered proprietors in occupation of their respective parcels. The suit's fulcrum is a boundary dispute; the Land Registrar's reports are yet to be presented in court. Applying Giella v Cassman Brown, the first limb fails since no clear demarcation exists between the parcels. The court therefore directed maintenance of the status quo, each party remaining on its portion, and did not reach the second and third Giella limbs.

p. 2
02

Whether the 3rd Plaintiff was in contempt of the order of 2nd March, 2020

Holding

Contempt not proved; the application for committal was dismissed.

Reasoning

Contempt proceedings are criminal in nature and the burden lies on the applicant. The applicant failed to specify when the trespass by grazing occurred, did not controvert the denial of grazing, and the boundary between the parcels remains undemarcated so the alleged breach could not be established. Applying the four elements in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and section 29 of the ELC Act, the allegations were not proved to the required standard.

p. 3
03

Costs of the two applications

Holding

Costs were made costs in the cause.

Reasoning

Having dismissed both applications as unmerited, the court exercised its discretion on costs by ordering that costs of the two applications be in the cause, deferring the question of costs to the outcome of the main suit.

p. 3

Legal principles established

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  • The four elements of civil contempt must be proved to the required standard, which is higher than in civil cases.
  • Where the first Giella limb (prima facie case) fails, the court need not consider the remaining limbs as they are consequential.
  • In interlocutory applications concerning land, parties are encouraged to agree on maintaining status quo, failing which the judge may order status quo pending determination of the suit.

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 23rd December, 2019 seeking an interlocutory injunction is disallowed.
  2. 2.The 1st Defendant's Notice of Motion dated 14th July, 2020 seeking committal of the 3rd Plaintiff for contempt is disallowed.
  3. 3.The obtaining status quo is to be maintained, with the 1st Defendant and the 3rd Plaintiff to remain on their respective portions of land pending the determination of the boundary.
  4. 4.Costs of the two applications to be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 40
  • Environment and Land Court ActSection 29
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in Other CourtsRule 32

Cases cited (2)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Environment and Land Court Act; Order 40 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure Act (applications brought thereunder)

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, "Gabriel Onsongo Okondo & 10 others v Sangiri Ole Kiok & 2 others [2020] KEELC 931 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/931/eng@2020-10-21

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