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ELCDismissedEnvironment & Land Case E001 of 2022· [2023] KEELC 15877 (KLR)

Dave Kipkorir Langat v District Physical Planning Officer & 44 others

Environment and Land Court
23 February 2023
2,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner with a court judgment in his favour still couldn't evict 40 occupiers, because they were never heard in the earlier case.

What this practically means

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Executive summary

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The Applicant, Dave Kipkorir Langat, moved the Environment and Land Court at Kericho by Notice of Motion dated 24 December 2021 seeking interim injunctive orders restraining the 6th-45th Defendants/Respondents from occupying, entering, cultivating on, constructing on, alienating or otherwise interfering with LR No. Kericho Municipality Block 5/159 pending hearing of the suit. He relied on a judgment of 5 May 2015 in Kericho High Court Petition No. 1 of 2013, in which his constitutional rights were found infringed and cancellation of entries interfering with his land was ordered, and on a ruling of 2 December 2021 finding the 1st-5th Respondents in contempt. He contended the Respondents' occupation was trespass following unlawful allotment of plots of 40 x 80 sq feet. The 2nd-5th Respondents filed grounds of opposition, arguing the application failed the equitable threshold and was overtaken by events. The 7th Respondent swore a replying affidavit for the 6th-45th Respondents, asserting they were bona fide allottees in 2013 under PDP No. R22/2011/01 for Talai community resettlement, in occupation of ancestral land, and were never parties to the 2013 petition. Applying Giella v Cassman Brown and Mrao v First American Bank, and guided by Article 50(1) of the Constitution and American Cyanamid, Oundo, J held the Applicant had not established a prima facie case, since granting the orders would amount to premature eviction of persons in occupation who had never been heard. The remaining Giella conditions were not reached, the test being sequential. The court ordered maintenance of status quo pending determination of the suit, directed compliance with Order 11 within 21 days, and ordered costs to be in cause.

Key legal issues

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01

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established; the orders sought would amount to a premature eviction of the 6th-45th Respondents who were in occupation and were never parties to the 2013 petition

Reasoning

The court applied Giella and Mrao. Although the Applicant held a 2015 judgment declaring his rights over the suit land, the 6th-45th Respondents were not parties to that petition and claimed occupation as allottees of plots under PDP No. R22/2011/01 for Talai community resettlement. Granting the injunction would effectively evict them without a hearing, contrary to Article 50(1). At the interlocutory stage the court does not resolve conflicts of evidence (American Cyanamid).

02

Whether the remaining Giella conditions (irreparable harm, balance of convenience) required consideration

Holding

Not necessary; the conditions are sequential and failure of the first condition ends the enquiry

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as cited in Joseph Wambua Mulusya v David Kitu, the court held the enquiry is sequential so the second condition is addressed only if the first is satisfied. The court nonetheless observed that the balance of convenience did not tilt towards granting the injunction and that status quo was the appropriate order.

Legal principles established

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  • Any person who stands to be affected by an eviction order is entitled to be heard before such an order is made, per Article 50(1) of the Constitution
  • The Giella conditions for interlocutory injunction are sequential; failure of the first condition disposes of the application unless the court entertains doubt on the prima facie case

Court orders

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  1. 1.Parties shall maintain the status quo prevailing pending the hearing and determination of the suit
  2. 2.Parties shall set down the matter for hearing expeditiously by complying with Order 11 of the Civil Procedure Rules within 21 days upon delivery of the ruling
  3. 3.Costs to be in cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 rule 1(a) and (b), rule 4(2) and rule 10
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 50(1)
  • Laibons Removal OrdinanceNo. XXX of 1934

Cases cited (5)

  • Giella vs Cassman Brown
    (1973) EA 358

    Conditions for grant of an interlocutory injunction

  • Mrao v First American Bank of Kenya Limited & 2 others
    (2003) KLR 125

    Definition of a prima facie case

  • American Cyanamid Co v Ethicon Limited
    (1975) 1 ALL ER 504; (1975) AC 396 HL

    Court at interlocutory stage does not resolve conflicts of evidence or decide difficult questions of law

  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86

    Sequential nature of the Giella conditions

  • Joseph Wambua Mulusya v David Kitu & another
    (2014) eKLR

    Approval of the Afraha Education Society sequence principle

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land in Kericho; application brought under Order 51 Rule 1, Order 40 rules 1(a), (b), 4(2) and 10 Civil Procedure Rules and section 3A 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, "Dave Kipkorir Langat v District Physical Planning Officer & 44 others", Case Analysis (2023). Environment & Land Case E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15877/eng@2023-02-23

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