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ELCDismissedNotice of Motion dated 13th July, 2016 (undated suit number in judgment)· [2021] KEELC 4381 (KLR)

Mpoyio Ole Yiaro Lisinko & 12 others v Imaroro /Mashuuru Group Ranch & 13 others [2021] KEELC 4381 (KLR)

Environment and Land Court
9 February 2021
COChristine Ochieng
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kajiado's Environment and Land Court dismissed members' bid to block a group ranch subdivision because a prior court decree already governed the land.

What this practically means

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Executive summary

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The Plaintiffs, members of a Group Ranch registered under the Land (Group Representatives) Act, moved the court by Notice of Motion dated 13th July 2016 under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, seeking an injunction against the Defendants in respect of land parcel Kajiado/Kaputiei Central/5. They alleged that the 2nd to 11th Defendants, being officials of the Group Ranch, fraudulently conducted the subdivision of the suit land, allocated themselves and their associates larger portions, failed to render accounts of members' contributions, tampered with the register of members, and issued fake titles unsupported by Green Cards. The Defendants opposed the application through a replying affidavit of Leperin Nkairabali, contending that the matter was res judicata, the subdivision having been supervised by the Environment and Land Court at Machakos in ELC Case No. 253 of 2009, culminating in a Decree issued on 30th November 2018. The court framed a single issue: whether the Applicants were entitled to a temporary injunction pending the outcome of the suit. It held that res judicata is evidential and could not be conclusively determined at an interlocutory stage without the full proceedings, but that in the face of a Decree from a court of competent jurisdiction it could not interfere absent sufficient evidence. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the Plaintiffs had failed to establish a prima facie case and declined to consider the second and third limbs. The application was dismissed with costs.

Key legal issues

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01

Res judicata at interlocutory stage

Holding

The court could not make a conclusive finding of res judicata without the full proceedings; the existence of a Decree from a court of competent jurisdiction, however, restrained interference absent sufficient evidence

Reasoning

The Defendants produced only the Decree issued on 30th November, 2018 in Machakos ELC Case No. 253 of 2009, not the full proceedings. The court held res judicata is evidential and requires sufficient evidence, and being faced with a Decree from a competent court, declined to interfere on the Plaintiffs' bare allegation that only a few parties were represented.

p. 3
02

Entitlement to temporary injunction

Holding

Plaintiffs failed to establish a prima facie case; the second and third Giella limbs were not considered

Reasoning

Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court found the Plaintiffs had not demonstrated an apparently infringed right: they did not controvert the existence of the Machakos Decree nor provide an update on the situation on the ground after the supervised subdivision commenced.

p. 3

Legal principles established

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  • A prima facie case is one which, on the material presented, shows an apparently infringed right calling for an explanation or rebuttal from the opposite party
  • Res judicata is evidential and cannot be conclusively determined at an interlocutory stage without sufficient evidence such as the full proceedings

Court orders

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  1. 1.Dismissal of the Plaintiffs' Notice of Motion dated 13th July, 2016
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 7
  • Land (Group Representatives) ActSection 7

Cases cited (3)

  • Giella Vs Cassman Brown
    (1973) EA 358
  • John Florence Maritime Services Limited & Another V Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 2002 (2003) K.L.R 125
Jurisdiction invoked
Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mpoyio Ole Yiaro Lisinko & 12 others v Imaroro /Mashuuru Group Ranch & 13 others [2021] KEELC 4381 (KLR)", Case Analysis (2021). Notice of Motion dated 13th July, 2016 (undated suit number in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4381/eng@2021-02-09

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