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ELCDismissedNot stated in the judgment provided· [2020] KEELC 1213 (KLR)

Japhes Arisa Makori & another v County Government of Kisii & another [2020] KEELC 1213 (KLR)

Environment and Land Court
29 July 2020
JOJ.M ONYANGO
856 words in judgment
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The bottom line

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A community group lost its bid to protect disputed grazing land in Kisii because it provided no documents proving ownership of the property.

What this practically means

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Executive summary

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The Plaintiffs, members of Ndonyo Grazing Ground Community Based Organization, claim beneficial ownership of land parcel SOUTH MUGIRANGO/NYATAARO/1202, which they say was reserved as a community grazing ground but erroneously registered in the name of Gusii County Council during adjudication in 1970. By Notice of Motion dated 18th November 2019 they sought interlocutory injunctions restraining the Defendants - the County Government of Kisii and a second Defendant - from trespassing on, demarcating, alienating or interfering with the suit property pending hearing of the suit, plus police assistance in enforcement and costs. The 1st Defendant opposed through the Replying Affidavit of Patrick Achoki, Director of Physical Planning, contending there was no evidence of imminent threat and raising a preliminary point that the suit is statute-barred. Applying the Giella v Cassman Brown principles and Mrao v First American Bank's definition of a prima facie case, the court found the Plaintiffs had attached no documents to prove their claimed ownership, had not shown when any trespass occurred, and had not demonstrated the property was in danger of alienation. The conditions for an injunction were therefore not met. The court deferred the limitation question, noting a mix-up in the defence and the Plaintiffs' failure to submit on it, promising to address it separately. The application was dismissed with costs in the cause, dated, signed and delivered at Kisii via video link on 29th July 2020 by J.M Onyango J.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case entitling them to an interlocutory injunction

Holding

They did not; no documentary evidence was attached to prove their claimed beneficial ownership, and it was unclear whether the land was used for grazing or leased to the 2nd Defendant

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Mrao v First American Bank. Although the Plaintiffs alleged the suit land was reserved as a grazing ground but erroneously registered in the name of Gusii County Council in 1970, they attached no documents to prove the claim. They also failed to show when any trespass occurred or that the property was in danger of alienation, so the injunction conditions were not met.

p. 2
02

Whether the alleged demarcation/trespass justified injunctive relief

Holding

No; the Applicants did not state when the alleged acts were committed nor provide evidence of danger of alienation

Reasoning

The court noted the bare allegation that the Respondent had started demarcating the property, but found no particulars of when trespass occurred or evidence of threatened alienation. Bare allegations without evidential support cannot satisfy the irreparable injury or prima facie case thresholds, and the court agreed with Respondent's counsel that the Giella conditions were not demonstrated.

p. 2
03

Whether the suit is statute-barred (limitation defence)

Holding

Issue deferred; the court will address limitation separately once apparent confusion in the defence is sorted out

Reasoning

The 1st Respondent raised limitation in its Replying Affidavit and submissions, but the court perused the defence filed on 30.1.20 and found some mix-up. The Applicants did not submit on limitation, whether deliberately or inadvertently. The court therefore declined to determine limitation at this interlocutory stage and will deal with it separately.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must satisfy the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • A prima facie case is one which, on the material presented, the court concludes that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

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  1. 1.The Notice of Motion dated 18th November 2019 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Cases cited (2)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in an ongoing suit; specific enabling provision not cited in the judgment)

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, "Japhes Arisa Makori & another v County Government of Kisii & another [2020] KEELC 1213 (KLR)", Case Analysis (2020). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1213/eng@2020-07-29

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