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ELCPartially AllowedBungoma ELC Petition (with Notice of Motion dated 11th May 2021)· [2021] KEELC 2715 (KLR)

Wandiema Mutyo Kesis & 153 others v County Commissioner Bungoma & 6 others [2021] KEELC 2715 (KLR)

Environment and Land Court
30 June 2021
2,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Bungoma protected the Chebombai community from eviction by Kenya Forest Service pending a full trial, but gave them only 12 months.

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 Bungoma (Boaz N. Olao, J) delivered on 30th June 2021 on the Petitioners' Notice of Motion dated 11th May 2021 seeking an interim injunction restraining the Respondents - including the Kenya Forest Service - from evicting, harassing or threatening the Petitioners and other Chebombai Community members on land parcels North Malakisi/North Wamono/595, 565, 566 and 451 and all parcels outside the cutline between Cheptais Forest and Chebombai area. The Petitioners claimed ancestral occupation since time immemorial, developments including crops and livestock, and title deeds issued to some members after the 2001 demarcation. The Respondents opposed, asserting Cheptais Forest is a gazetted public forest gazetted in 1932 with no de-gazettement, that no eviction threats were issued, that the suit parcels do not form part of the forest, and that a related petition (Bungoma ELC Petition No 3 of 2020) is pending. Applying the Giella v Cassman Brown principles, as amplified in Mrao and Nguruman, the Court found doubt as to the Petitioners' prima facie case and irreparable injury given the absence of evidential material such as photographs, but on the balance of convenience - considering the subsisting ex-parte injunction since 24th May 2021 and the disputed Certificates of Search showing title deeds - and the lower-risk-of-injustice test in Films Rover International, allowed the application. The Court issued a temporary injunction pending the hearing and determination of the Petition, ordered the Petition be heard within 12 months failing which the injunction lapses, and made costs in the Petition.

Key legal issues

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01

Prima facie case and irreparable injury

Holding

The Petitioners' failure to annex evidence such as photographs of developments, livestock and homes cast doubt on their prima facie case and irreparable injury

Reasoning

The Court noted the Petitioners deponed to living outside the cutline since time immemorial, having made great developments, and facing threats of eviction and torching of homes, crops and livestock, yet annexed no photographs or supporting evidence of these claims.

p. 4
02

Balance of convenience

Holding

The balance of convenience favours the Petitioners given the subsisting interim injunction and disputed Certificates of Search showing some Petitioners hold title deeds for the suit parcels

Reasoning

An ex-parte temporary injunction had been in place since 24th May 2021, and Certificates of Search (though disputed) indicated some Petitioners held title deeds for the suit parcels following adjudication; whether those titles fall within or outside Cheptais Forest is a matter for trial.

p. 4
03

Lower risk of injustice

Holding

The Court granted the injunction taking the course carrying the lower risk of injustice

Reasoning

Relying on Films Rover International v Cannon Film Sales Ltd, the Court held it should take the route that appears to carry the lower risk of injustice should it turn out to have been wrong, and was persuaded the application was proper to allow.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction need not establish title; it is enough to show a fair and bona fide question to raise as to the existence of the right alleged

Court orders

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  1. 1.A temporary order of injunction restraining the Respondents, their agents, workers, servants and those claiming under them from evicting, harassing, threatening, destroying crops, livestock and torching homes or interfering in any manner with the Petitioners and other Chebombai Community members on land parcels NORTH MALAKISI/NORTH WAMONO/595, 565, 566 and 451 and all parcels outside the cutline between Cheptais Forest and Chebombai area pending hearing and determination of the Petition
  2. 2.The Petitioners to ensure the Petition is heard and determined within 12 months, failing which the injunction shall lapse unless the Court orders otherwise
  3. 3.Costs shall be in the Petition

Authorities

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Legislation

  • Constitution of Kenyanot specified (Constitutional imperative of serving justice without delay)

Cases cited (5)

  • GIELLA .V. CASSMAN BROWN & CO LTD
    1973 E.A 358
  • MRAO .V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    C.A Civil Appeal No 39 of 2002
  • NGURUMAN LTD .V. JAN BONDE NIELSEN & OTHERS
    C.A Civil Appeal No 77 of 2012 [2014 eKLR]
  • FILMS ROVER INTERNATIONAL .V. CANNON FILM SAL LTD
    1986 3 All. E. R
  • RICHARD SIBILIBILI & OTHERS .V. KENYA FOREST SRVICES & OTHERS
    Bungoma ELC Petition No 3 of 2020
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (Petition dated 8th May 2021 alleging violation of constitutional rights, heard with interlocutory Notice of Motion under Certificate of Urgency)

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, "Wandiema Mutyo Kesis & 153 others v County Commissioner Bungoma & 6 others [2021] KEELC 2715 (KLR)", Case Analysis (2021). Bungoma ELC Petition (with Notice of Motion dated 11th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2715/eng@2021-06-30

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