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ELCDismissedNot stated in the extract (Murang'a ELC suit; ruling on two Notices of Motion dated 27/6/18 and 23/7/18)· [2020] KEELC 2276 (KLR)

Kandara Residents Association & 4 others v Delmonte (K) Limited & 4 others [2020] KEELC 2276 (KLR)

Environment and Land Court
3 June 2020
5,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The court let the residents' land case continue but refused to block lease renewals because they proved no actual property rights.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J G Kemei, Judge, delivered 3 June 2020) determined two consolidated notices of motion: the Plaintiffs' motion of 27/6/18 seeking an interim injunction restraining the National Land Commission from renewing leases over nine L.R numbers held by Delmonte Kenya Limited, and Delmonte's motion of 23/7/18 seeking a stay or striking out of the suit as sub judice, duplicating Petition No 398 of 2015 and NLC complaint NLC/HLI/004/2017, and abusive of court process. The Court first dealt with the striking-out motion. Applying section 6 of the Civil Procedure Act, it held that sub judice requires pending proceedings; both the NLC complaint (determined 7/2/19, gazetted 1/3/19) and the Petition (determined 20/9/19) had been concluded, so sub judice was spent. Testing res judicata under section 7, the Court noted the Petition was found to lack jurisdiction and the Plaintiffs were not parties to it; the issues in the three disputes differed, and issue estoppel was unfounded. The suit was therefore not sub judice. On the injunction, applying Giella v Cassman Brown, the Court found no prima facie case: the minutes of the 16/11/16 NLC meeting conveyed no property rights to the Plaintiffs, who proved no transfer of any right. Damages were adequate given the NLC's statutory power under section 15(9) NLCA to order restitution, compensation, resettlement or profit-sharing, and the balance of convenience favoured refusing the injunction. Both applications were dismissed with each party bearing its own costs. The Court declined to rule on the 1st Plaintiff's capacity to sue, not having been pleaded in the motion.

Key legal issues

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01

Whether the suit is sub judice, res judicata or an abuse of process given Petition No 398 of 2015 and NLC complaints

Holding

The suit is not sub judice; the prior proceedings had been determined, sub judice is spent, and res judicata does not apply because the Petition was found to lack jurisdiction and the issues differ

Reasoning

Section 6 CPA bars trial only where a prior suit is pending between the same parties over the same subject matter. By the time of the ruling, the NLC complaint had been determined on 7/2/19 and the Petition on 20/9/19, so nothing was pending. Testing res judicata under section 7, the Petition was found to lack jurisdiction and the Plaintiffs were not parties; the issues in the three disputes were different. Issue estoppel was therefore unfounded.

p. 8
02

Whether the Plaintiffs established a prima facie case for an interim injunction

Holding

No; the Plaintiffs failed to prove any right or interest in the suit properties flowing from the NLC chairman's comments of 16/11/16, so the probability of success was doubtful

Reasoning

Applying Giella v Cassman Brown, the Applicant must show a cause of action whose facts are proven. The minutes of 16/11/16 were mere comments by the NLC Chairman and conveyed no known property right; property rights are acquired through transfer, transmission, sale, gift or purchase. Delmonte swore it was unaware of the meeting. The Plaintiffs' claim of historical injustice remains compensable under sections 13 and 15 of the NLCA.

p. 9
03

Whether damages would be an inadequate remedy and where the balance of convenience lies

Holding

Damages are adequate since the NLC may grant restitution, land compensation, resettlement or profit-sharing under section 15(9) NLCA; the balance of convenience favours refusing the injunction

Reasoning

The Court reasoned that the NLC is statutorily empowered to make a raft of compensation forms for historical injustice, so the Plaintiffs would not suffer loss incapable of compensation. Having failed to prove any right or interest, no damages are legally due from the Defendants, and the balance of convenience tilts toward declining the injunction.

p. 9

Legal principles established

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  • Sub judice under section 6 of the Civil Procedure Act requires pending proceedings; once the prior suits are determined, sub judice falls away and the twin test is whether the current suit would be res judicata under section 7.
  • A party seeking an injunction must prove a transgressed right as a matter of fact; minutes of a meeting do not convey property rights absent a recognized mode of acquisition.

Court orders

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  1. 1.The applications dated the 27/6/18 and 23/7/18 are hereby dismissed.
  2. 2.Each party shall meet the costs of their application.

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 7
  • National Land Act (NLCA)sections 13, 15, 15(9)
  • Land Actsection 13
  • National Land Commission Actsection 17
  • Constitution of KenyaArticle 67(1); Articles 10 and 232
  • Land (Extension and Renewal of Leases) Rules2017
  • Land (Allocation of Public Land) Regulationssection 36 (2017)
  • Societies Actnot specified

Cases cited (5)

  • Silas Make Otuke Vs Hon Attorney General & 3 others
    (2014) EKLR
  • Mohamed Dado Hatu Vs Dhadho Gaddae Godhana & 2 others
    (2017) EKLR
  • Thiba Min Hydro Co Ltd Vs Josphat Karu Ndwiga
    (2013) EKLR
  • Abdulkadir A. Khalif v Principal Secretary, Ministry of Lands and Physical Planning & 6 others
    [2018] EKLR
  • Giella Vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (suit concerning land within Murang'a); the ruling determines interlocutory applications

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, "Kandara Residents Association & 4 others v Delmonte (K) Limited & 4 others [2020] KEELC 2276 (KLR)", Case Analysis (2020). Not stated in the extract (Murang'a ELC suit; ruling on two Notices of Motion dated 27/6/18 and 23/7/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2276/eng@2020-06-03

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