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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 3112 (KLR)

Mau Resort Limited v Narok County Government (Environment & Land Case 181 of 2017) [2022] KEELC 3112 (KLR)

Environment and Land Court
30 June 2022
MGMBOGO C G
3,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop Narok County from developing disputed land because the company's ownership documents raised serious credibility problems.

What this practically means

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Executive summary

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Mau Resort Limited, the plaintiff, applied by notice of motion dated April 19, 2020 under Order 51 Rule 1 and Order 40 Rules 1 and 2 of the Civil Procedure Rules for a temporary injunction restraining Narok County Government from setting up a market place, erecting structures, demolishing, trespassing onto or otherwise dealing with Plot No 300/7 Narok Township, pending the hearing of the suit. The plaintiff claimed it was the registered proprietor, having acquired the land in 2010 under a valid allotment letter, being in occupation and paying annual rates, and alleged that on April 17, 2020 the defendant's agents vandalised water tanks and construction materials in preparation for an open-air market. The defendant, through its County Secretary, opposed the application, contending the land was public land allocated to the National Museums of Kenya, that the plaintiff's allotment was irregularly procured by council insiders who were its directors/shareholders, and that no prima facie case had been demonstrated. The court framed the sole issue as whether the application was merited. It noted the rival claims of ownership, but found it telling that the allotment letter dated July 22, 2010 was issued to a company incorporated only on October 20, 2012, engaging the clean hands doctrine. Applying the Giella and Nguruman sequential test, the court held the plaintiff had not established a prima facie case, and since all three conditions must be surmounted in sequence, irreparable injury and balance of convenience required no consideration. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

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

Holding

No - ownership was disputed and the applicant's allotment letter predated its incorporation, undermining its bona fides.

Reasoning

The applicant claimed ownership vide an allocation letter dated July 22, 2010, yet the company was incorporated on October 20, 2012, two years after the allotment. The respondent asserted the land was public land allocated to the National Museums of Kenya. The court held the maxim of clean hands was engaged and the applicant failed at the first hurdle of the injunction test.

p. 5
02

Whether the remaining Giella conditions (irreparable injury and balance of convenience) required consideration

Holding

No - all three conditions are sequential hurdles and failure at the first stage is fatal.

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen, the court held the three requirements are separate, distinct and logical hurdles to be surmounted sequentially. Having found no prima facie case, irreparable injury and balance of convenience needed no consideration, and leap-frogging is not permitted.

p. 6

Legal principles established

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  • All three Giella conditions for an interlocutory injunction must be satisfied sequentially; failure to establish a prima facie case disposes of the application.
  • An injunction is an equitable remedy that may be denied where the applicant's conduct offends equity.

Court orders

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  1. 1.The notice of motion application dated April 19, 2020 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 40

Cases cited (17)

  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Mohamed Ahmed Dahia & 3 Others v Abbey Hassan Maalim
    [2020] eKLR
  • The Iron & Steel Limited Civil Appl No 48 of 1958
  • Nganga v Kimani
    [1969] EA 67
  • Film Rover International Limited & Others v Common Film Sales Ltd
    [1986] 3 AER 772
  • Waithaka v Industrial & Commercial Development Corporation
    [2001] KLR 374
  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya National Highway Authority v Shailen Masood Mughal & 5 Others
    [2017] eKLR
  • Abraham Lenauia Lenkeu v Charles Katekeyo Nkaru
    [2016] eKLR
  • Esther Muthoni Passaris v Charles Kanyuga & 2 Others
    [2015] eKLR
  • Rex v Kensington Income Commissioners, Exparte Princess Edmond De Polignac
    [1917] 1 KB 486
  • Charter House Investments Ltd v Simon K Sang and others
    [2010] eKLR
  • American Cyanamid Co v Ethicom Limited
    [1975] AC AER 504
  • Moses C Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    [2014] eKLR
  • Showind Industries v Guardian Bank Limited & Another
    [2002] 1 EA 284
  • Kenya Commercial Finance Co Ltd v Afraha Education Society
    [2001] Vol 1 EA 86
Jurisdiction invoked
Order 51 Rule 1 and Order 40 Rules (1) and (2) of the Civil Procedure Rules; Sections 1A and 1B 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, "Mau Resort Limited v Narok County Government (Environment & Land Case 181 of 2017) [2022] KEELC 3112 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3112/eng@2022-06-30

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