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ELCDismissedNotice of Motion dated 30th July 2019 in the suit· [2020] KEELC 2983 (KLR)

Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2020] KEELC 2983 (KLR)

Environment and Land Court
30 April 2020
DOD. O. Ohungo
1,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a political party from selling its Naivasha land because the applicants could not prove current membership or that they paid rent.

What this practically means

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Executive summary

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The plaintiffs, claiming to be members of the defendant political party, moved the court by Notice of Motion dated 30th July 2019 for an interlocutory injunction restraining the defendant, its agents and servants from entering into any sale agreement for the suit property, Naivasha Municipality Block 5/386, without a resolution and concurrence of the members, particularly the Naivasha Branch. They contended they had leased spaces on the property, constructed butcheries, shops, toilets and stalls, and paid rent, while the defendant's national officials were secretly negotiating a sale to Naivas Limited without a members' resolution. The defendant, through its Secretary General, denied the plaintiffs were members, relying on a letter from the Registrar of Political Parties dated 9th August 2019, asserting a 2013 NEC resolution to sell the property and that under a 2012 Special Delegates Conference resolution its national officials acted as trustees, leaving branch officials without capacity to execute the leases. Applying the Giella test as refined in Nguruman, the court held the applicants failed at the first hurdle: their membership cards had been renewed over 10 years previously with no evidence of renewal, and they offered no evidence of payment of rent or the one-off sums under the purported leases. The court therefore found no prima facie case and dismissed the application with costs to the defendant. The ruling was delivered remotely pursuant to the Chief Justice's COVID-19 practice directions.

Key legal issues

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01

Whether the applicants established a prima facie case for an interlocutory injunction

Holding

They did not; their membership was not current (renewed over 10 years ago) and they produced no evidence of payment under the purported leases, corroborated by the Registrar of Political Parties' letter stating they were not members

Reasoning

The applicants' case depended entirely on membership of the defendant. Under the defendant's constitution membership cards must be procured and renewed (ordinary membership annually, gold every ten years). The cards annexed were renewed over 10 years earlier with no evidence of renewal. Nor did they evidence payment of rent or one-off sums under the leases. The Registrar of Political Parties confirmed none of them were members. Accordingly the first Giella limb failed and the application fell at that hurdle.

p. 2

Legal principles established

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  • The three Giella conditions are sequential hurdles; failure at the first stage dispenses with consideration of the rest
  • A prima facie case requires more than an arguable case; evidence must show an apparent infringement of a right and probability of success
  • In assessing a prima facie case the court does not hold a mini-trial or examine the merits closely
  • A party cannot benefit under purported leases without demonstrating valid leases and compliance with their terms

Court orders

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  1. 1.Notice of Motion dated 30th July 2019 dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Political Parties Actregistration of the defendant

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
Jurisdiction invoked
Original civil jurisdiction over the dispute relating to land and an application for interlocutory injunction (suit property Naivasha Municipality Block 5/386)

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, "Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2020] KEELC 2983 (KLR)", Case Analysis (2020). Notice of Motion dated 30th July 2019 in the suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2983/eng@2020-04-30

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