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ELCDismissedNot stated in the judgment (Notice of Motion dated 4th August, 2020)· [2021] KEELC 2799 (KLR)

Leonard Letitio Onetu & 2 others v Karasanka Ole Maai & 5 others [2021] KEELC 2799 (KLR)

Environment and Land Court
21 June 2021
COChristine Ochieng
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop the subdivision of Eselenkei Group Ranch because the objecting members could not show their own land rights were threatened.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 4th August 2020 in which four registered members of Eselenkei Group Ranch sought a temporary injunction restraining the 1st to 3rd Defendants (officials of the group ranch) from subdividing, surveying, allocating or alienating parcel KAJIADO/ESELENKEI/1, from withdrawing monies from the ranch's bank account, and an order for auditing of the ranch's accounts. The Plaintiffs alleged embezzlement, failure to hold elections since 2015, and unilateral procurement of surveyors without community assembly decisions. The Defendants opposed, showing that AGMs were regularly held, that members resolved as early as 1993 to dissolve and subdivide the ranch, that subdivision has been ongoing since 2004 with over 2,000 members already issued title deeds, and that the Ministry of Lands required completion by June 2021 failing which the Community Land Act would apply. Applying Giella v Cassman Brown, Justice Christine Ochieng found the Plaintiffs had not established a prima facie case: the 1st Plaintiff had voluntarily resigned as an official, the members in AGM supported subdivision, and the Plaintiffs neither controverted the Defendants' averments nor showed they were denied their shares. Citing Nguruman Ltd v Jan Bonde Nelson, the court declined to consider irreparable harm and balance of convenience. The account-freezing and audit prayers were held to be matters for trial with viva voce evidence. The application was dismissed, parties directed to comply with Order 11 of the Civil Procedure Rules, with costs in the cause.

Key legal issues

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01

Whether a prima facie case was established to warrant an interlocutory injunction against continued subdivision

Holding

No prima facie case established; AGMs were held, subdivision commenced in 2004 with member resolutions, over 2,000 members already hold title deeds, and the 1st Plaintiff voluntarily resigned as an official

Reasoning

The court examined the replying affidavits and annexures, finding AGMs were held (13th November 2018), members resolved in 1993 to dissolve the ranch, survey agreements existed from 2004 onwards, and the Ministry of Lands set a deadline of June 2021. The Plaintiffs, only three members, did not controvert these averments or show they were denied their rightful shares.

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 once a prima facie case fails, irreparable injury and balance of convenience need not be considered.

p. 3
03

Whether the accounts should be frozen and audited at the interlocutory stage

Holding

Refused; a trial matter requiring viva voce evidence

Reasoning

The court found allegations of embezzlement could only be proved at hearing with evidence of misappropriation following an audit.

p. 3

Legal principles established

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  • Where a prima facie case is not established, the remaining Giella conditions (irreparable injury and balance of convenience) need not be considered
  • Stopping a costly, ongoing subdivision process for minor correctable faults is unfair to members

Court orders

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  1. 1.The Notice of Motion application dated 4th August, 2020 is dismissed
  2. 2.Parties are directed to comply with Order 11 of the Civil Procedure Rules
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • Community Land ActNot specified (three-year transition for group ranches with Certificates of Dissolution)
  • Civil Procedure RulesOrder 11

Cases cited (10)

  • Samuel Macharia & Another Vs Kenya Commercial Bank & 2 others
    (2012) eKLR
  • Giella Vs Cassman Brown
    (1973) EA 358
  • Paul Gitonga Wanjau V Gathuthi Tea Factory Company Ltd & 2 Others
    (2016) eKLR
  • Winfred Nyawira Maina Vs Peterson Onyiego Gichana
    (2015) eKLR
  • Kwanza Estates Limited V Dubai Bank Kenya Limited
    (2013) eKLR
  • Imanke Ole Lekincha Lolojie & 105 Others V Mailua Group Ranch & 2 others
    (2020) eKLR
  • Peter Tomito Korinko & 2 Others V Korinko N Nkoliai & 12 Others
    (2014) eKLR
  • Panian Ole Motua & 3 Others V Registered Group Representatives Kimana Tikondo Group Ranch
    (2006) eKLR
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Nguruman Ltd v Jan Bonde Nelson & 2 others
    Civil Appeal No.21 of 2014(UR)
Jurisdiction invoked
Not expressly stated; interlocutory application within an ongoing suit under the Civil Procedure Rules (Order 11 compliance directed)

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, "Leonard Letitio Onetu & 2 others v Karasanka Ole Maai & 5 others [2021] KEELC 2799 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 4th August, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2799/eng@2021-06-21

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