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ELCDismissedPetition dated 02/09/2021 (Notice of Motion dated 02/09/2021)· [2022] KEELC 2125 (KLR)

Wei-Wei Community Land Owners Committee (C.B.O) “Through” Its Members Namely Joakim Kriwei Alemusia & 12 others v Matayo Tirino (Area Chief) & 20 others [2022] KEELC 2125 (KLR)

Environment and Land Court
19 January 2022
7,226 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kitale refused to stop an irrigation project because the applicants could not prove they owned or held rights over the land in dispute.

What this practically means

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Executive summary

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The Petitioners, members of the Wei-Wei Land Owners C.B.O., sought a temporary injunction restraining the first to nineteenth Respondents from entering, subdividing, cultivating or taking possession of the Marich Chesangat/Kokwositot Irrigation Scheme, and restraining the twentieth Respondent (National Irrigation Authority) from further allocations. They contended the land was ancestral community land of the Marich community and that the Respondents had forcibly invaded and subdivided the first 300 acres upon completion on 31/07/2021. The Respondents countered that the Self-Help Group (Marich Water Users Group), whose officials were the third to nineteenth Respondents, applied for and managed the project through the NIB/NIA since 2013, that the Petitioners were not residents of Wei-Wei Location, and that the Petitioners had lost management committee elections. The twentieth and twenty first Respondents warned that stopping the timed Contractor's work would cause loss of public funds. The Court called the Assistant Project Engineer, Eng. Edwin Keitany, who confirmed the NIA dealt only with the Self-Help Group. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the Court found no right of the CBO was infringed or threatened; the funding request letter was written on behalf of Marich (Kokwositot) Irrigation Scheme, not the CBO. No loss incapable of damages was shown, and the balance of convenience favoured the Respondents given food security and public funds. The application was dismissed with costs to the Respondents, with all parties cautioned against interfering with the project.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

They did not; the CBO had no right over the land that was infringed or threatened, and the Self-Help Group was the entity the NIB/NIA dealt with from inception

Reasoning

The letter of 7/02/2013 requesting funding was written on behalf of Marich (Kokwositot) Irrigation Scheme by Joseph Kamara, with the first and sixth Petitioners as mere witnesses. The chronology from 2013 was satisfactorily explained: the Scheme changed names to the Marich Water Users Group (Self-Help Group), registered 16/03/2020, earlier than the CBO registered 07/09/2020. The Petitioners failed to establish the nexus between the CBO and the Scheme, and could not approbate and reprobate.

p. 7
02

Whether damages would adequately compensate the Applicants

Holding

No loss incapable of compensation by damages was established; no Petitioner annexed evidence of a specific proprietary interest

Reasoning

The Petitioners admitted the 150 portions had already been allocated and allottees issued sprinklers. The Area Chief deponed that all Petitioners hailed from outside the area. None annexed title or leasehold evidence over any portion. The land was said to be community land with no specific proprietary interest by the Petitioners, so any loss would be compensable.

p. 7
03

Where the balance of convenience lies

Holding

It tilts in favour of the Respondents because stopping the project would cause loss of public funds and undermine food security

Reasoning

The first two phases were complete and handed over without complaint. The third phase was at an advanced stage with the Contractor on site under a timed contract. Stopping it would cause huge loss of public funds and breach of contract. The project was designed to enhance food security, a public interest consideration.

p. 7
04

Distinction between injunctions and conservatory orders

Holding

The application sought an injunction under the Civil Procedure Rules; parties should have submitted on injunction principles, not conservatory orders

Reasoning

Citing Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court noted that injunctions belong to the sphere of civil claims and are issued on convenience and balance of probability, whereas conservatory orders bear a public-law connotation and are granted on the inherent merit of a case bearing in mind public interest and constitutional values.

p. 5

Legal principles established

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  • A prima facie case in civil cases is one in which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal
  • Injunctions and conservatory orders are distinct: injunctions belong to civil claims issued on convenience and balance of probability, conservatory orders bear a public-law connotation

Court orders

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  1. 1.The Application dated 2/09/2021 is dismissed with costs to the Respondents
  2. 2.The Suit to be mentioned on 2/02/2022 for further directions
  3. 3.The Parties directed to file and exchange paginated trial bundles before the mention date
  4. 4.All parties cautioned not to interfere with the irrigation project unless through lawful means and orders

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 40, 61(1), 63(1), 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rules 1(a), 2, 3, 4; Order 51 Rule 1
  • Community Land ActGeneral
  • Irrigation Act, No. 14 of 2019Establishment of the National Irrigation Authority

Cases cited (4)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    null
  • Giella v Cassman Brown and Another
    (1973) EA 358
  • Stek Cosmetics Limited v Family Bank Limited & another
    [2020] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No 39 of 2002
Jurisdiction invoked
Articles 22, 40, 61 and 63 of the Constitution of Kenya, 2010; application brought under Order 40 Rules 1(a), 2, 3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 3, 3A, 1A, 1B and 63(e) of the Civil Procedure Act

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, "Wei-Wei Community Land Owners Committee (C.B.O) “Through” Its Members Namely Joakim Kriwei Alemusia & 12 others v Matayo Tirino (Area Chief) & 20 others [2022] KEELC 2125 (KLR)", Case Analysis (2022). Petition dated 02/09/2021 (Notice of Motion dated 02/09/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2125/eng@2022-01-19

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