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ELCPartially AllowedELC Case (Mombasa), application dated 23rd February 2021 and application dated 16th March 2021· [2021] KEELC 1343 (KLR)

County Government of Taita Taveta v Isangaiwich Group Ranch & 3 others [2021] KEELC 1343 (KLR)

Environment and Land Court
27 October 2021
NMN.A. Matheka
3,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court stopped evictions on disputed Taita Taveta community land, ruling the land must stay untouched until ownership is decided at trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa by N.A. Matheka, J, decided two interlocutory applications. First, the plaintiff County Government, invoking Article 63 of the Constitution, the Community Land Act and the Community Land Regulations 2017, sought temporary injunctions restraining the 1st defendant, a group ranch registered under the repealed Land (Group Representatives) Act, from evicting communities on, or charging, selling, leasing or sub-dividing, land formerly Bura/Isangaiwishi/18, now subdivided into Bura/Isangaiwich/19 and 20. The plaintiff contended the land is unregistered community land vesting in it as trustee, while the 1st defendant, registered since 1983 with about 1,940 members, denied the claim and sought stay pending ELC Constitutional Petition No. 14 of 2021. Applying Giella vs Cassman Brown, the court found a prima facie case: ownership was disputed and the 1st defendant had issued eviction notices, creating a risk of irreparable loss. It granted a temporary injunction restraining eviction pending hearing of the main suit, with costs in the cause. Second, the 1st defendant's application to stay these proceedings pending the later-filed constitutional petition was dismissed: the petition, filed 15th March 2021, was sub judice a suit filed 24th February 2021, and the defendant could have raised its claim here or sought consolidation. Costs on that application were also made costs in the cause. Judgment was delivered at Mombasa on 27th October 2021.

Key legal issues

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01

Whether the plaintiff established a prima facie case for temporary injunction

Holding

Yes - a dispute over ownership of the suit land and threatened evictions justified interim protection

Reasoning

The plaintiff argued that the suit property, held under the repealed Land (Group Representatives) Act, is unregistered community land vesting in the county government as trustee under Article 63 and Sections 6 and 47 of the Community Land Act, and that the 1st defendant had issued an eviction notice and subdivided the land. The court found a bona fide ownership dispute and threatened eviction, satisfying the Giella threshold for interim orders pending trial.

p. 3
02

Whether proceedings should be stayed pending ELC Constitutional Petition No. 14 of 2021

Holding

No - the petition was filed during the pendency of this suit and is sub judice; stay refused

Reasoning

Section 6 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a previously instituted suit. The petition was filed on 15th March 2021, after this suit was filed on 24th February 2021, and the parties overlap. The 1st defendant could have raised its claim in this suit or sought consolidation, so no basis for staying the earlier, first-filed matter existed.

p. 4

Legal principles established

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  • An interlocutory injunction application is decided on the Giella vs Cassman Brown principles: prima facie case with probability of success, irreparable harm not compensable in damages, and balance of convenience if in doubt
  • Where the registered proprietor of land has issued eviction notices against persons living on the suit land and ownership is disputed, interim orders are warranted to avoid irreparable loss
  • Stay of proceedings under Section 6 of the Civil Procedure Act is discretionary, not a matter of right, and will not be granted where the later-filed proceeding is sub judice the earlier suit

Court orders

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  1. 1.Temporary injunction pending hearing and determination of the main suit restraining the defendants, their agents and servants from evicting communities living on and occupying land formerly known as Bura/Isangaiwishi/18, later subdivided to Bura/Isangaiwich/19 and Bura/Isangaiwich/20
  2. 2.Costs to be in the cause (on the plaintiff's application dated 23rd February 2021)
  3. 3.Dismissal of the 1st defendant's application dated 16th March 2021 seeking stay of proceedings
  4. 4.Costs to be in the cause (on the 1st defendant's application)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 63; Article 159(2)
  • Community Land ActSections 6, 6(1), 7, 7(1), 47, 47(1)(2), 47(3)
  • Land (Group Representatives) Act Cap 287 (repealed)generally
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A, 6
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Community Land Regulations, 2017Regulation 13; Regulation 26; Regulation 26(1)-(8), 26(3)
  • Land ActSection 8

Cases cited (6)

  • Giella vs Cassman Brown & Co Ltd
    1973 E.A 358
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No. 3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & another
    (2019) eKLR
  • Board of Management of Uhuru Secondary School vs City County Director of Education & 2 Others
    (2015) eKLR
  • Ochola Kamili Holdings Ltd vs Guardian Bank Ltd
    [2018] eKLR
Jurisdiction invoked
Article 63 of the Constitution of Kenya 2010 and the Community Land Act (including Community Land Regulations, 2017); motions brought under Section 47(1)(2) Community Land Act, Sections 1A, 1B, 3A and 6 Civil Procedure Act, Order 40 Rule 1 and Order 51 Rule 1 Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Taita Taveta v Isangaiwich Group Ranch & 3 others [2021] KEELC 1343 (KLR)", Case Analysis (2021). ELC Case (Mombasa), application dated 23rd February 2021 and application dated 16th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1343/eng@2021-10-27

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