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ELCDismissedNotice of Motion dated 27th August, 2020 (suit at Environment and Land Court, Kajiado)· [2021] KEELC 2289 (KLR)

Kilelo Ole Kilitia & 5 others v Daniel Metoe & 5 others [2021] KEELC 2289 (KLR)

Environment and Land Court
29 July 2021
COCHRISTINE OCHIENG
2,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Six Mbirikani Group Ranch members lost their bid to halt subdivision because they couldn't show the court they represented other members or were denied their land.

What this practically means

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Executive summary

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This was a ruling on the Plaintiffs' Notice of Motion dated 27th August 2020 in a suit concerning Mbirikani Group Ranch. The Plaintiffs sought leave to advertise the institution of the suit, temporary injunctions restraining the 1st to 3rd Defendants from withdrawing funds from the group ranch's Equity Bank account and from undertaking survey, subdivision, allocation or alienation of the suit land, an order for accounts, and the appointment of an auditor. They alleged that the elected officials had contracted Geoflex Consultants to subdivide the ranch land without member approval, were relying on a void 2005 Land Control Board consent, and had failed to render accounts. The Defendants, in a replying affidavit sworn by the 1st Defendant Daniel Metoe, denied misappropriation, asserted that the Geoflex contract was frustrated and terminated after the County Government of Kajiado withheld approval, and that the ongoing survey by Kolmans Geomatic Consultants had member support, including a resolution at the 7th March 2020 opinion leaders meeting attended by the 1st Plaintiff. The court framed a single issue: whether the 1st to 3rd Defendants should be restrained from subdividing and allocating the suit land pending the suit. Applying Giella v Cassman Brown and Nguruman, the court held that the six Plaintiffs, who did not demonstrate they represented other members or that they had been denied their shares, failed to establish a prima facie case. Alleged misappropriation was held to be an evidentiary matter requiring viva voce evidence. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for a temporary injunction

Holding

They did not; the subdivision had member support, official oversight, and the Plaintiffs did not show they represented other members or were denied their shares

Reasoning

The court found that the opinion leaders' meeting of 7th March 2020, attended by the 1st Plaintiff, resolved to support subdivision funded from lease fees. The Land Control Board consent of 2005 existed, the Kolmans contract was properly supervised, and the Geoflex contract had been terminated after county approval was refused. The Plaintiffs produced no evidence of misappropriation and failed to show they represented a class of members or were denied their individual allocations.

p. 3
02

Whether the remaining Giella conditions required consideration

Holding

No; failure of the first condition disposes of the application

Reasoning

Relying on Nguruman Ltd v Jan Bonde Nelson, the court held that where no prima facie case is established, the court need not consider irreparable injury and balance of convenience. Having failed at the first limb of the Giella test, the Plaintiffs' application necessarily failed without evaluation of the other two limbs.

p. 3

Legal principles established

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  • Where a prima facie case is not established, irreparable injury and balance of convenience need not be considered
  • Stopping a costly ongoing subdivision process due to minor correctable faults is unfair

Court orders

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  1. 1.The Notice of Motion application dated 27th August, 2020 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Cases cited (8)

  • Giella Vs Cassman Brown
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012; Civil Appeal No.21 of 2014(UR)
  • Jack Mukhongo Munialo Vs Nzoia Sugar Co. Ltd & Another
    (2017) eKLR
  • Ahmed Dolal & 9 Others (suing on their behalf and on behalf of 27 members of Likoley Farmers V KENGEN & Another
    (2018) eKLR
  • Fredrick Nganga Thuo V Peter Mungai Njuho
    (2019) eKLR
  • Leonard Letitio Onetu & 2 others v Karasanka Ole Maai & 5 others
    [2021] eKLR
  • Peter Tomito Korinko & 2 Others V Korinko N Nkoliai & 12 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over group ranch land disputes (not expressly stated in the judgment)

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, "Kilelo Ole Kilitia & 5 others v Daniel Metoe & 5 others [2021] KEELC 2289 (KLR)", Case Analysis (2021). Notice of Motion dated 27th August, 2020 (suit at Environment and Land Court, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2289/eng@2021-07-29

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