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ELCDismissedNotice of Motion application dated 15th September, 2020 (suit number not stated in judgment)· [2021] KEELC 1130 (KLR)

Lengur Ole Sairi v County Government of Kajiado & 8 others [2021] KEELC 1130 (KLR)

Environment and Land Court
3 November 2021
COChristine Ochieng
2,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kajiado landowner's bid to block development on disputed land failed because he couldn't prove ownership rights convincingly, showing Kenyan courts demand strong evidence early.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng J) on the Plaintiff's Notice of Motion dated 15th September 2020 seeking a temporary injunction restraining the Defendants from interfering with various KJD/OL Choro Onyore parcels of land. The Plaintiff, Lerngur Ole Sairi, claimed to be the registered owner of KAJIADO/OL CHORO ONYORE/82, which he said was compulsorily acquired in 2009 by the 1st Defendant (through the defunct Municipal Council of Kajiado) on a promise of alternative land, but was instead unlawfully subdivided and allocated to the Defendants' officials, relatives or proxies. The 1st Defendant opposed, denying compulsory acquisition and faulting the Plaintiff for not meeting the Giella v Cassman Brown threshold. The 4th Defendant asserted he purchased his parcel from a valid titleholder and that a prior Land Disputes Tribunal dispute over a beacon position had been settled by agreement, with the Plaintiff consenting to the subdivisions. The court framed one issue: entitlement to a temporary injunction. Applying Giella and the Mrao definition of a prima facie case, the court found no evidence of compulsory acquisition, noted contradictions in the Plaintiff's affidavits (he produced searches he claimed were denied), noted the mutation showed he himself applied for a subdivision, and observed that third-party allottees of the over fifty subdivisions were not joined. Concluding the Plaintiff was not candid and had established no prima facie case, the court, following Nguruman, declined to consider the other two limbs and dismissed the application, with costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

The Plaintiff failed to establish a prima facie case; the evidence contradicted his claim of compulsory acquisition, he was not candid, and third parties registered as owners were not joined

Reasoning

The court found no evidence of compulsory acquisition, the Plaintiff could not name the officials involved, he produced searches he claimed were denied to him, the mutation showed he himself applied for a subdivision, and numerous third-party allottees were not parties. His claim was found not candid, so the first Giella limb failed.

p. 3
02

Whether the remaining Giella limbs (irreparable injury and balance of convenience) needed consideration

Holding

No - having failed on the first limb, the court declined to decide the other two limbs, following Nguruman Ltd v Jan Bonde Nielsen

Reasoning

Relying on Nguruman, the court held that a party who fails on the prima facie case limb need not have the other limbs decided, and accordingly dismissed the application without assessing irreparable harm or the balance of convenience.

p. 3

Legal principles established

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  • Where a party fails to establish the first limb of the injunction test (prima facie case), the court need not proceed to decide the other two limbs (irreparable injury and balance of convenience)

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 15th September, 2020 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Registered Land Act (repealed)

Cases cited (9)

  • Giella Vs Cassman Brown & Company
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya & 2 Others
    (2003) eKLR
  • Antoine Ndiaye Vs Africa Virtual University
    (2015) eKLR
  • Assanand V Pettitt
    (1979) KLR
  • Robert Mugo Wa Karanja V Ecobank (Kenya) Limited & Another
    (2019) eKLR
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    (2014) eKLR
  • Total Kenya Limited V David Njane t/a Argwings Twin Service Station & 2 Others
    (2018) eKLR
  • Kenya Commercial Finance Co. Ltd V Afraha Education Society
    (2001) VOL. 1 EA 86
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application)

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, "Lengur Ole Sairi v County Government of Kajiado & 8 others [2021] KEELC 1130 (KLR)", Case Analysis (2021). Notice of Motion application dated 15th September, 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1130/eng@2021-11-03

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