Wandiema Mutyo Kesis & 153 others v County Commissioner Bungoma & 6 others [2021] KEELC 2715 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case and irreparable injury
The Petitioners' failure to annex evidence such as photographs of developments, livestock and homes cast doubt on their prima facie case and irreparable injury
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.
Balance of convenience
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
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.
Lower risk of injustice
The Court granted the injunction taking the course carrying the lower risk of injustice
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.
Legal principles established
#- 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
#- 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.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.Costs shall be in the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.