Kandara Residents Association & 4 others v Delmonte (K) Limited & 4 others [2020] KEELC 2276 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is sub judice, res judicata or an abuse of process given Petition No 398 of 2015 and NLC complaints
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
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.
Whether the Plaintiffs established a prima facie case for an interim injunction
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
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.
Whether damages would be an inadequate remedy and where the balance of convenience lies
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
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.
Legal principles established
#- 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
#- 1.The applications dated the 27/6/18 and 23/7/18 are hereby dismissed.
- 2.Each party shall meet the costs of their application.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.