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ELCDismissedEnvironment & Land Petition 12 of 2017· [2023] KEELC 17578 (KLR)

Tikani & 18 others v Attorney General & 6 others

Environment and Land Court
30 May 2023
CMCG Mbogo
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (Mbogo CG J) determined a notice of motion dated 8th August 2022 filed by the petitioners, led by the 18th petitioner Purko Development Trust, seeking reinstatement of conservatory orders granted by Waithaka J on 20th March 2013, and interim restraints against the respondents demarcating, disposing of, dealing with or issuing title deeds over three parcels of land: the Cis Mara Sheep and Goat project at Olopito, Olekere Loonkushu Naanyoike at Purko Motonyi farm (approximately 499 acres) and LR No. Ilmashariani/Morijo/60, pending an appeal against the court's judgment of 20th July 2022 which had dismissed the petition and vacated the 2013 orders. The application was supported by an affidavit of Joseph Nkaiwuatei, said to be a member of the Purko Community and Chief Executive Officer of the Trust. The 6th respondent and the Attorney General opposed, contending the deponent was a stranger to the proceedings and that the court was being asked to sit on appeal over its own judgment. The court framed two issues: Nkaiwuatei's locus standi and whether the 2013 orders should be reinstated. Examining the trust's board list and registered trust agreement, the court found Nkaiwuatei was neither a trustee nor shown to be CEO, agreeing he was a stranger to the proceedings. The application was therefore dismissed with no orders as to costs, without reaching the merits of reinstatement or the community land question.

Key legal issues

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01

Locus standi of the deponent to the supporting affidavit

Holding

Joseph Nkaiwuatei had no authority to swear the supporting affidavit for the 18th petitioner as he was neither a registered trustee nor shown to be the Chief Executive Officer of Purko Development Trust

Reasoning

The court examined the petition affidavit, the authorisation of Daniel Ole Nakola as Secretary, the list of seventeen Board of Trustees members, and the registered trust agreement. Nkaiwuatei's name appeared nowhere in those documents, so he was a stranger to the proceedings and the application collapsed.

p. 4
02

Whether the orders of 20th March, 2013 should be reinstated pending appeal

Holding

The court declined to consider reinstatement because the application itself was fatally defective for want of a valid supporting affidavit

Reasoning

Having found the deponent lacked standing, the court held the application had no legs to stand on and merited no further consideration, without reaching the merits of reinstatement, community land or the nugatory-appeal arguments.

p. 4

Legal principles established

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  • A supporting affidavit sworn by a person who is neither a party nor shown to be authorised by a party renders the application fatally defective

Court orders

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  1. 1.The notice of motion application dated 8th August, 2022 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 2, 3, 10, 19, 20, 21, 22, 23, 27, 28, 35, 40, 43, 47(1), 50, 53, 56, 57, 60, 63, 165(3)(b), 258, 259(1)(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(a)(b)(c) and (e)
  • Civil Procedure RulesOrder 42 Rule 6, Order 50 Rule 1
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006Rules 1-23

Cases cited (1)

  • Ajiwa Shamji Limited versus Kenya National Highways Authority & Another
    [2018] eKLR

    That an affidavit signed by an official of a corporation who is not a party does not invalidate the affidavit

Jurisdiction invoked
Articles 20, 22, 23, 40, 43, 47(1), 50, 60, 63, 165(3)(b), 258 and 259(1)(b) of the Constitution; Civil Procedure Act sections 1A, 1B, 3A and 63; Order 42 Rule 6 and Order 50 Rule 1 of the Civil Procedure Rules

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, "Tikani & 18 others v Attorney General & 6 others", Case Analysis (2023). Environment & Land Petition 12 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17578/eng@2023-05-30

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