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ELCPartially AllowedConstitutional Petition (application for injunction dated 22 June 2019)· [2021] KEELC 3738 (KLR)

Kenya Agricultural and Livestock Research Organisation (KALRO) v Edison Sonje Taura & 4 others [2021] KEELC 3738 (KLR)

Environment and Land Court
22 March 2021
MSMUNYAO SILA
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to evict land occupants before a full hearing, instead freezing the property so nobody builds or changes anything until the case ends.

What this practically means

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Executive summary

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KALRO, a State corporation and successor to KARI, filed a constitutional petition and a contemporaneous application for injunction at the Environment and Land Court in Mombasa. It claimed ownership of parcel MN/III/1450, unlawfully subdivided in about 1995 into plots including MN/III/2944, 2945 and 2946 and allocated to private individuals. The subdivided titles were cancelled by Gazette Notice No. 15570 of 26 November 2010 following anti-corruption litigation, and KALRO alleged that in December 2018 the respondents invaded the ocean front land, vandalized its buildings and erected structures, violating Articles 62(1) and 40(3) of the Constitution. It sought declarations of ownership, a permanent injunction, vacant possession and general damages. The 4th respondent, Joshua Katana Juba, opposed, claiming ancestral occupation from time immemorial, denying KALRO built the buildings, and noting the National Land Commission had invited claims over the land. Applying Giella v Cassman Brown, the court found KARI was in possession before the fresh titles and that cancellation reverted the land to the applicant's predecessor, establishing a prima facie case; the respondents showed no documentary title. However, the court noted the respondents' developments and the applicant's delay, and held that an injunction in the terms sought would amount to eviction without a full hearing. It instead ordered that no party make additional developments and that the status quo on possession be maintained until the suit is determined, with costs in the cause. The court also questioned, but deferred, the propriety of the petition as the mode of commencement. The application was only partially successful.

Key legal issues

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01

Prima facie case

Holding

The applicant demonstrated a prima facie case with probability of success

Reasoning

KARI, the applicant's predecessor, was in possession before fresh titles issued; the subdivided titles were cancelled via Gazette Notice No. 15570 of 26 November 2010 and the respondents had no documentary proof of title or any right to the land, only a letter from the National Land Commission that did not cover the parcels. Upon cancellation the land prima facie reverted to the applicant.

p. 2
02

Appropriate interim remedy

Holding

Rather than the injunction sought, maintenance of status quo was the just order

Reasoning

The respondents had made developments on the land and the applicant delayed in coming to court; an injunction in the terms sought would effectively evict the respondents without a full hearing. However, unrestrained continued development could irreversibly alter the land's character, so status quo on possession and no additional developments were ordered.

p. 2
03

Suitability of constitutional petition for private law remedies

Holding

The court questioned, but deferred, the propriety of the constitutional petition mode of commencement

Reasoning

The suit sought only private law remedies of vacant possession, damages and permanent injunction, and its commencement as a constitutional petition was unclear to the court; however, since parties had not addressed the issue, it was left for a later stage of the proceedings.

p. 2

Legal principles established

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  • To succeed in an application for injunction, one must demonstrate a prima facie case with probability of success, irreparable loss not compensable by damages, and, if in doubt, the balance of convenience

Court orders

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  1. 1.No party to make any additional developments on the land until the suit is heard and determined
  2. 2.The current status quo on possession of the land to be maintained until the suit is heard and determined
  3. 3.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Kenya Agricultural and Livestock Research ActNo. 17 of 2013
  • Constitution of KenyaArticle 62(1)
  • Constitution of KenyaArticle 40(3)
  • Land Act

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 373
Jurisdiction invoked
Constitutional Petition invoking Articles 40(3) and 62(1) of the Constitution (Environment and Land Court jurisdiction over land disputes)

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, "Kenya Agricultural and Livestock Research Organisation (KALRO) v Edison Sonje Taura & 4 others [2021] KEELC 3738 (KLR)", Case Analysis (2021). Constitutional Petition (application for injunction dated 22 June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3738/eng@2021-03-22

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