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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1912 (KLR)

Tana River County Government v Ida-Sa Godana Ranching Co-operative Society & 4 others [2022] KEELC 1912 (KLR)

Environment and Land Court
26 January 2022
MOM.A. ODENY
668 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 dismissed an unopposed eviction bid, confirming that even when nobody objects, courts still test every application on its merits.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (M.A. Odeny, J) ruled on two applications by the plaintiff, dated 22 February 2021 and 20 September 2021. The first sought vacation of the 1st Respondent from the suit property, L.R No. 13597, on the ground that the community had suffered from an arbitrary process in the renewal of a lease said to have been irregularly issued in 1971 and expired in 2015. The applicant deposed, through legal advisor Isaiah Ndisi Munje, that the Transition Authority had written to the National Land Commission on 17 June 2015 requesting engagement with local communities before extension of the lease, but the communities were overlooked and excluded from the extension, to the detriment of their pastoral activities. The second application sought leave to amend the plaint. Both applications were unopposed, the defendants having been served but having filed neither a response nor submissions. The court held that an unopposed application must nonetheless be examined on its merits. It found that the first application sought, in substance, eviction orders - final relief - at the interlocutory stage, and that the allegations of arbitrary process required proof at trial. Following Faith Karimi Muchangi & 2 others v Peter Njeru Mvungu [2017] eKLR, the court dismissed the first application with no orders as to costs. The application for amendment of the plaint, being unopposed, was allowed as prayed, with leave to file and serve the amended plaint within seven days. The ruling was delivered online on 26 January 2022 in line with COVID-19 practice directions.

Key legal issues

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01

Whether eviction orders could issue on an interlocutory, unopposed application

Holding

No - the relief sought was final in substance and required proof at trial; the application was dismissed despite being unopposed

Reasoning

The court noted the unopposed nature of the application did not entitle the applicant to automatic success. The wording of the application alleged arbitrary deprivation of the community's livelihood, which is a matter requiring proof at trial. Granting the order would have effectively disposed of the whole suit at the interlocutory stage, which the court declined to do, following the Faith Karimi Muchangi decision.

p. 2
02

Whether leave to amend the plaint should be granted

Holding

Yes - the application was unopposed and was allowed as prayed, with 7 days to file and serve the amended plaint

Reasoning

The defendants had been served with both the application and the plaint but filed no response or submissions. The court found the amendment application unopposed and merited, granting leave as prayed and directing that the amended plaint be filed and served within seven days.

p. 2

Legal principles established

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  • An unopposed application must still be examined on its merits before it is allowed
  • A court will not grant final relief at the interlocutory stage

Court orders

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  1. 1.The application seeking vacation of the 1st Respondent from the suit property is dismissed with no orders as to costs
  2. 2.Leave to amend the plaint is granted as prayed
  3. 3.Applicant to file and serve the amended plaint within 7 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 21(1)

Cases cited (1)

  • Faith Karimi Muchangi & 2 others v Peter Njeru Mvungu
    [2017] eKLR
Jurisdiction invoked
Not expressly stated; Civil Procedure Rules Order 21(1) referenced

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, "Tana River County Government v Ida-Sa Godana Ranching Co-operative Society & 4 others [2022] KEELC 1912 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1912/eng@2022-01-26

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