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ELCAllowednot_stated_in_judgment· [2020] KEELC 3021 (KLR)

Lake Basin Development Authority v Registered Trustees of the Agricultural Society of Kenya (ASK) [2020] KEELC 3021 (KLR)

Environment and Land Court
29 April 2020
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court ordered the Agricultural Society of Kenya off land allotted to Lake Basin Development Authority, showing long possession counts in double-allocation disputes.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court (A.O. Ombwayo J) on a notice of motion dated 29 July 2019 by Lake Basin Development Authority against the Registered Trustees of the Agricultural Society of Kenya. The plaintiff claimed a proprietary interest in an unsecured Bungoma Municipality plot measuring about 13.4 hectares, allotted to it by the National Land Commission under a Letter of Allotment dated 23 November 2016 (Ref No 209163/A(VIII)/34), on which it had been in possession since 1984 and on which it ran an Integrated Technology Transfer Center with a dairy unit, pasture and AI services. It alleged that in April 2019 the defendant, through its Bungoma branch, hived off and fenced about 20 acres, ploughed the land, destroyed indigenous trees and incited the local community to graze on the remaining portion. The defendant countered that it held the land in trust for the public of Bungoma County and had been permitted by the County Government of Bungoma on 29 November 2018 to occupy portions of East Bukusu/West Sang'alo/989 pending formal allocation. The court applied the test for interlocutory mandatory injunctions from Kenya Breweries Ltd v Washington O. Okeya and Nation Media Group v John Harun Mwau, requiring special circumstances and a higher standard than for prohibitory injunctions. It found a prima facie case, irreparable harm and balance of convenience favouring the plaintiff, noting the anomaly of a double allocation by the NLC. It granted both a mandatory and a prohibitory injunction pending the hearing of the suit, with costs in the cause. The ruling was delivered electronically due to COVID-19 restrictions.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a likelihood of success

Holding

Yes - the plaintiff was allotted the suit property by the National Land Commission on 23 November 2016 under Letter of Allotment Ref No 209163/A(VIII)/34, paid the requisite fees, and had been in possession since 1984; the court found it unclear how the respondent could have been allocated the same land by the same Commission.

Reasoning

The court found the plaintiff proved allocation by the NLC and payment of requisite fees, coupled with possession from 1984 and existing projects on the land. It noted the anomaly of the respondent being allocated the same land by the same Commission without considering the plaintiff's interest, and that the plaintiff's existing projects elevated its interest above the respondent's, which commenced only in 2016.

p. 3
02

Whether the plaintiff demonstrated irreparable harm

Holding

Yes - the plaintiff invested on the land, has old indigenous trees of sentimental and environmental conservation value, and the trespass threatens disease control for its livestock.

Reasoning

The court accepted that the plaintiff had invested in the suit property, including an Integrated Technology Transfer Center with a dairy unit of about forty cattle, and that the defendant's fencing, ploughing and destruction of indigenous trees, plus open grazing by the local community, created a threat of disease spread that damages could not adequately compensate.

p. 3
03

Where the balance of convenience lies

Holding

With the plaintiff, whose projects on the land date from 1984, as opposed to the defendant's projects commencing in 2016.

Reasoning

The court weighed the longevity of the respective parties' activities: the plaintiff had undertaken projects on the suit property since 1984, while the defendant's activities were comparatively recent (2016), so disruption would fall more heavily on the plaintiff's long-established operations.

p. 3

Legal principles established

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  • A mandatory injunction will be granted on an interlocutory application if the case is clear, the act is simple and summary and easily remedied, or the defendant has attempted to steal a march on the plaintiff.
  • A higher degree of assurance than for a prohibitory injunction is required before an interlocutory mandatory injunction is granted.

Court orders

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  1. 1.A mandatory order of injunction, pending the hearing and determination of the suit, directed at the defendant, its employees, servants or persons acting under its authority, compelling it to stop any activities in and remove its items, machines, employees or persons acting with its authority from the unsecured Bungoma Municipality plot measuring 13.4 ha allotted to the Lake Basin Development Authority pursuant to the Letter of Allotment dated 23/11/2016
  2. 2.An order of injunction, pending the hearing and determination of the suit, directed at the respondents themselves, their servants or agents, to stop any activities/continued trespass over the unsecured Bungoma Municipality plot measuring 13.4 ha allotted to the Lake Basin Development Authority pursuant to the Letter of Allotment dated 23/11/2016
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 10; section 62(1)(b)
  • Lake Basin Development Authority ActCap 442, section 8
  • Government Lands Act (repealed)Cap 280, section 2
  • Animal Disease ActCap 364, section 4

Cases cited (2)

  • Kenya Breweries Ltd & Another vs Washington O. Okeya
    [2002] eKLR
  • Nation Media Group & 2 Others vs John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory notice of motion for injunction); no specific constitutional provision invoked.

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, "Lake Basin Development Authority v Registered Trustees of the Agricultural Society of Kenya (ASK) [2020] KEELC 3021 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3021/eng@2020-04-29

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