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ELCDismissedMombasa ELC Petition (interlocutory application dated 10th June 2019, as amended 22nd October 2019)· [2021] KEELC 3522 (KLR)

Justus Ndoro Kalama, Stephen Karemu Muketha, Anna Ndori Mwololo (Suing as Chairman, Secretary and Treasurer of Bahari Community Development, CBO) v Ministry of Lands and Physical Planning, Kenya Port Authority, Mombasa Cement Limited & National Land Commission (? 17 of 2019) [2021] KEELC 3522 (KLR)

Environment and Land Court
30 April 2021
JOJ.O. Olola
2,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi refused to stop quarrying on disputed land because the community had no title or legal claim yet.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th June 2019 as amended on 22nd October 2019, three officials of Bahari Community Development CBO, describing their members as squatters deprived of possession of LR Nos. MN/III/289, 273, 281 and parts of Crown lands combined into MN/III/107 (now MN/III/528), sought an interim injunction restraining Kenya Ports Authority (2nd Respondent) and Mombasa Cement Ltd (3rd Respondent) from quarrying or planting trees on the suit properties pending the hearing of their Petition. They relied on a directive by the Parliamentary Committee on Land dated 2nd March 2017 that the Ministry of Lands take possession of the land and that the National Land Commission reserve it for their settlement. The 2nd Respondent asserted it is the absolute and indefeasible owner, having purchased the land in 1993 for Kshs 150,000,000, and that the application failed the Giella test; the 3rd Respondent challenged the Petitioner's capacity and noted similar issues pending in Mombasa ELC Petition No. 17 of 2018 where it had obtained conservatory orders. Considering Order 40 of the Civil Procedure Rules and the Giella conditions as articulated in Mrao Ltd v First American Bank, the Court held the Petitioners, having admitted the properties are registered in the Respondents' names and being mere squatters whose claim rests on an unimplemented Parliamentary directive, had no legal claim or title and had not established a prima facie case. Relying on Kenya Commercial Finance Company Ltd v Afraha Education Society, the Court held the Giella conditions are sequential and declined to consider the remaining limbs. The application was dismissed with costs on 30th April 2021.

Key legal issues

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01

Whether the Petitioners established a prima facie case

Holding

No. The Petitioners admitted the suit properties are registered in the names of the 2nd and 3rd Respondents; as squatters their claim rests only on a Parliamentary Committee directive that was yet to be complied with, hence aspirational

Reasoning

The Court found the Petitioners had settled on the land without any legal claim or title at present. Their claim hinged on the Parliamentary Committee on Land's direction that the land be acquired by the National Land Commission for their settlement, a directive that had not been implemented. Relying on Nelson Kazungu Chai v Pwani University College, the Court held such a claim is merely aspirational or rhetorical and cannot found an injunction.

p. 3
02

Whether the other Giella conditions needed consideration

Holding

No. Since the first condition failed, the Court did not need to address irreparable injury or balance of convenience

Reasoning

Relying on Kenya Commercial Finance Company Ltd v Afraha Education Society, the Court reiterated that the Giella conditions are sequential: the second condition can only be addressed if the first is satisfied. Having found no prima facie case, the inquiry ended there.

p. 4

Legal principles established

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  • The three Giella conditions for an interlocutory injunction are sequential; the second condition is addressed only if a prima facie case is established
  • A prima facie case is a right which has apparently been infringed, calling for an explanation or rebuttal from the opposite party
  • Property rights protectable by injunction must exist in reality, not as an illusion or mere expectation

Court orders

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  1. 1.The application dated 10th June 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1(a) and (b)

Cases cited (5)

  • Giella –vs- Cassman Brown & Company Ltd & Another
    (1973) EA 358
  • Ramantlal T. Bhat –vs- R
    (1957) EA 332
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Nelson Kazungu Chai & 9 Others –vs- Pwani University College
    (2017) eKLR
  • Kenya Commercial Finance Company Ltd –vs- Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court; interlocutory relief sought under Order 40 of the 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, "Justus Ndoro Kalama, Stephen Karemu Muketha, Anna Ndori Mwololo (Suing as Chairman, Secretary and Treasurer of Bahari Community Development, CBO) v Ministry of Lands and Physical Planning, Kenya Port Authority, Mombasa Cement Limited & National Land Commission (? 17 of 2019) [2021] KEELC 3522 (KLR)", Case Analysis (2021). Mombasa ELC Petition (interlocutory application dated 10th June 2019, as amended 22nd October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3522/eng@2021-04-30

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