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ELCPartially AllowedNotice of motion dated May 29, 2019 (suit filed at Migori, Environment and Land Court)· [2022] KEELC 3600 (KLR)

Mara Siana Conservancy Company Limited v Ani Investment Limited (Environment & Land Case 33 of 2019) [2022] KEELC 3600 (KLR)

Environment and Land Court
11 July 2022
3,999 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated May 29, 2019, the plaintiff, operator of the Mara Siana Conservancy comprising about 1,200 leased parcels in Narok County, sought injunctions restraining the defendant from trespassing on and disrupting its conservation and tourism business on 14 specified parcels (Cis-Mara/Siana 'A'/6336 among others). The plaintiff alleged trespass on December 24, 2018 and April 20, 2019, intimidation of employees and clients, and threatened loss of an investment exceeding Kshs 100,000,000. The defendant opposed, raising the plaintiff's capacity, alleging similar matters were pending in previous suits (National Environment Tribunal Appeal No 003 of 2018 and Constitutional Petition No 10 of 2018, Narok), denying trespass on the basis that camps use public roads to access the Maasai Mara through the Sekenani and Ololeumtik gates, and challenging the leases for non-registration and unpaid stamp duty. The court framed a sole issue: whether the applicant had met the requirements for a temporary injunction. Applying the Giella three-pillar test sequentially, the court found a prima facie case, holding that lease validity disputes were matters for trial; found irreparable injury because environmental and wildlife degradation cannot be quantified in damages; and found the balance of convenience favoured the applicant. The court allowed the application, granting an injunction restraining interference with the plaintiff's conservation work on the 14 parcels, expressly preserving public roads and access for all parties, with costs in the cause. Delivered virtually at Migori on July 11, 2022 by Mohammed N. Kullow, J.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - the applicant demonstrated possession and use of the 14 parcels under leases and showed infringement of its legal and proprietary rights by alleged trespass.

Reasoning

The court accepted that the applicant was in possession and use of the 14 parcels, having been lawfully leased, and had outlined how the respondent's acts affected its business and infringed its legal and proprietary rights. Challenges to lease validity (non-registration, unpaid stamp duty) were matters for trial, not interlocutory determination. Applying the Mrao definition, the applicant showed an apparent infringement calling for explanation or rebuttal.

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02

Whether the applicant demonstrated irreparable injury not compensable by damages

Holding

Yes - environmental degradation and harm to wildlife, plants and the conservancy business cannot be adequately quantified or compensated in damages.

Reasoning

The court applied Halsbury's and Pius Kipchirchir Kogo definitions of irreparable injury and held that degradation of the environment, wildlife and plant species within the ecosystem cannot be quantified by damages, and that loss of conservation work and tourism business could be beyond recovery. The applicant's demonstration of possession, its conservation business, and the threatened harm met the required threshold.

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03

Whether the balance of convenience favours the applicant

Holding

Yes - the inconvenience to the applicant from declining the injunction exceeds that likely to be caused to the respondent.

Reasoning

The court noted the applicant was in possession and occupation of the 14 parcels and that the respondent's alleged trespass affected both business and the environment and wildlife. However, the court qualified the relief: the respondent's own approximately 28-acre parcel was not in dispute, public roads must remain open, and the court cautioned against being used to further business rivals' agendas.

p. 7

Legal principles established

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  • An applicant for a temporary injunction must sequentially satisfy the Giella three-pillar test: prima facie case, irreparable harm not compensable in damages, and balance of convenience.
  • At the interlocutory stage the court makes no conclusive findings on contested matters such as the validity of unregistered leases.
  • Environmental degradation harm to wildlife and plant species is not quantifiable in damages and therefore constitutes irreparable injury.

Court orders

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  1. 1.An order of injunction restraining the defendant, its servants or agents from interfering with or disrupting the plaintiff's conservation work and business of providing game drives and tourism excursions in parcels Cis-Mara/Siana 'A'/6336, 5935, 6007, 6388, 7307, 5803, 7108, 4931, 5823, 6304, 7126, 5458, 7136 and 5611 or any other parcel within the conservancy except on the public roads and/or access, pending the hearing and determination of the suit
  2. 2.That the public roads and/or access roads shall remain in use for all parties, camps and/or entities within the large Mara conservancy pending the hearing and determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 (1)(2)
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (8)

  • Giella v Cassman Brown and Co Ltd
    [1973] EA 358
  • East African Industries v Trufoods
    [1972] EA 420
  • Kenya Commercial Finance Co Ltd v Afraha Education Society
    [2001] Vol 1 EA 86
  • Mrao Ltd v First American Bank of Kenya Ltd & 2
  • Airland Tours & Travel Limited v National Industrial Credit Bank
    Nairobi (Milimani) HCCC No 1234 of 2002
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; Civil Appeal No 77 of 2012 (Nairobi)
  • Charter House Investment Limited v Simon K Sang and 3 Others
    [2010] eKLR
Jurisdiction invoked
Order 40 (1)(2) of the Civil Procedure Rules; Section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Mara Siana Conservancy Company Limited v Ani Investment Limited (Environment & Land Case 33 of 2019) [2022] KEELC 3600 (KLR)", Case Analysis (2022). Notice of motion dated May 29, 2019 (suit filed at Migori, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3600/eng@2022-07-11

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