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ELCPartially AllowedEnvironment and Land Court Case No. 14 of 2001 (formerly HCCC No. 5407 of 2000)· [2024] KEELC 809 (KLR)

Naurori v Freeman & 2 others (Environment & Land Case E010 of 2023) [2024] KEELC 809 (KLR)

Environment and Land Court
16 November 2023
ESE. K. Sears
2,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret blocked the sale or subleasing of a 30-acre Maasai Mara property until a long-running land dispute is fully tried.

What this practically means

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Executive summary

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The plaintiff, the registered owner of 30 acres of land comprised in CisMara/Koyaki Darugurugurueti/940, brought a Notice of Motion dated 17th October 2023 under the Civil Procedure Act, the Environment and Land Court Act and Order 40 Rule 1 of the Civil Procedure Rules. She sought a temporary injunction restraining the defendants from subleasing, selling, alienating or interfering with the suit property, an order compelling payment of KShs 193,000,000 for 21 years' occupation, eviction, a permanent injunction and police supervision. She alleged an oral lease with an annual rental of KShs 360,000 and a booking fee of KShs 1,500,000, with arrears accruing since 2002. The defendants denied the existence of any lease, contending instead that their 21-year occupation and heavy investment created a constructive trust, and that any lease would be a controlled tenancy under the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. They offered to pay bed night and booking fees and relied on the balance of convenience lying in the maintenance of the status quo. Applying the principles in Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, and drawing on Mrao Ltd v First American Bank, Pius Kipchirchir Kogo v Frank Kimeli Tenai, Paul Gitonga Wanjau v Gathuthis Tea Factor Co Ltd and Amir Suleiman v Amboseli Resort Ltd, the court found a prima facie case demonstrated by the title deed and official search, sufficient demonstration of irreparable loss given the plaintiff's apparent non-benefit for 21 years, and a lower risk of injustice in granting the injunction since most issues required trial. The court granted a temporary injunction restraining subleasing, selling or alienation of the tourist camp and ordered costs to be in the cause.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case by annexing a copy of the title deed and an official search, demonstrating a legal right apparently infringed calling for explanation or rebuttal

Reasoning

Relying on Mrao Ltd v First American Bank of Kenya Ltd, a prima facie case is one where, on the material presented, the court concludes there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal. The title deed and official search sufficed at this interlocutory stage.

p. 5
02

Irreparable loss

Holding

The court found sufficient demonstration of irreparable loss where the plaintiff apparently had not benefited from the property for 21 years despite the existence of some form of agreement

Reasoning

Though the form of the agreement was disputed, the court found both parties were to benefit in some way and the plaintiff seemingly had not benefited since then, satisfying the second Giella criterion. The existence of some agreement, though disputed in form, supported the inference that the plaintiff stood to suffer loss not adequately compensable in damages.

03

Balance of convenience

Holding

The balance of convenience tilted towards granting the injunction as the court had not interrogated all documents and most issues required trial; granting the injunction carried the lower risk of injustice

Reasoning

Guided by Pius Kipchirchir Kogo v Frank Kimeli Tenai, Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd and Amir Suleiman v Amboseli Resort Ltd, the court held that where the comparative mischief is uncertain, the court should maintain the status quo and opt for the lower risk of injustice, which lay in preserving the property pending full trial.

p. 6

Legal principles established

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  • An applicant for a temporary injunction must sequentially establish a prima facie case, irreparable injury not compensable in damages, and that the balance of convenience lies in his favour
  • In interlocutory applications the court should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.An order of temporary injunction restraining the defendants/respondents whether by themselves or any other person, their agents, and/or their employees from subleasing, selling the tourist camp or alienating in any way the 30 acres property comprised in CisMara/Koyaki Darugurugurueti/940 pending the hearing and determination of the suit
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Environment & Land Court ActSections 3, 13, 7(1)
  • Civil Procedure RulesOrder 40 Rule 1
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) ActCap 301

Cases cited (6)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd versus First American Bank of Kenya Ltd
    [2003] eKLR
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau versus Gathuthis Tea Factor Company Ltd & 2 others
    [2016] eKLR
  • Amir Suleiman versus Amboseli Resort Limited
    [2004] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Sections 3, 13(1) and 7(1) of the Environment & Land Court Act; Order 40 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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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Naurori v Freeman & 2 others (Environment & Land Case E010 of 2023) [2024] KEELC 809 (KLR)", Case Analysis (2023). Environment and Land Court Case No. 14 of 2001 (formerly HCCC No. 5407 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/809/eng@2024-02-22

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