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ELCDismissedNot stated in judgment· [2024] KEELC 4116 (KLR)

Ndara B Community v Mwandoe & 7 others (Environment & Land Case E004 of 2024) (Environment and Land) [2024] KEELC 4116 (KLR)

Environment and Land Court
9 May 2024
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to stop community members from using Ndara B community land, but froze any subdivision and sent the dispute to mediation.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Voi (E. K. Wabwoto, J) on the Plaintiff's notice of application dated 11th March 2024. The Plaintiff, the Ndara B Community Land Management Committee, registered proprietor of L.R. No. Taita Taveta Sagala/Ndara 'B'/20 in Mwatate Sub-County, sought temporary injunctions restraining the eight Defendants from entering, cutting trees, subdividing and hiving off the suit land, alleging trespass, erection of beacons and clearance of vegetation on 30th December 2023 and 6th January 2024, incidents reported at Mwatate Police Station. The Defendants, acting in person and describing themselves as registered members of Ndara B Community Land, denied trespass, asserting they merely cultivate the land, and challenged the capacity of Benjamin Mwandaa to swear the supporting affidavit, noting he was not the Chairperson and that members had not consented to the suit. Applying Giella v Cassman Brown and Nguruman v Jan Bonde Nielsen, the court found no prima facie case established: the affidavit was deposed by a member whose authority was not demonstrated, and no evidence of loss to third parties was adduced. The injunction was refused. However, exercising discretion under Article 159(2)(c) of the Constitution and the Civil Procedure (Court Annexed Mediation) Rules, 2022, the court barred any subdivision or hiving off of the land by either party pending further directions, referred the suit to Court Annexed Mediation, directed the Deputy Registrar to appoint an accredited mediator, and ordered a mention to report on the mediation outcome. Costs were to be in the cause.

Key legal issues

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01

Whether the Plaintiff met the Giella v Cassman Brown criteria for a temporary injunction

Holding

No temporary injunction was granted; the Plaintiff failed to demonstrate entitlement to the orders sought.

Reasoning

Both parties are members of Ndara B Community utilising the suit property. The Plaintiff alleged trespass and subdivision; the Defendants denied this, claiming only cultivation. The Plaintiff adduced no evidence of loss to third parties, and the affidavit supporting the application was sworn by a person whose official capacity and authority were not demonstrated. The court therefore declined injunctive relief but preserved the status quo pending further directions.

p. 3
02

Whether Benjamin Mwandaa had authority to swear the supporting affidavit for the Plaintiff

Holding

The affidavit was deposed in his capacity as a member only; it was not shown he was an official or authorised to swear it on behalf of the Plaintiff.

Reasoning

The Defendants challenged Mwandaa's capacity, noting he was not the Chairperson and that members never consented to the suit. The court observed that the affidavit did not state that he was an official or that he had been authorised to swear it on behalf of the Plaintiff, which undermined the application.

p. 3
03

Whether the intra-community dispute should be referred to Court Annexed Mediation

Holding

Yes; invoking Article 159(2)(c) of the Constitution and the Civil Procedure (Court Annexed Mediation) Rules, 2022, the court referred the suit to mediation.

Reasoning

The dispute purely involves members of the Ndara B Community. The court held this necessitated invoking Article 159(2)(c) and referring the suit to Court Annexed Mediation, failing which the court would hear and determine the suit. The Deputy Registrar was directed to appoint an accredited mediator.

p. 4

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with a probability of success and irreparable injury not adequately compensable by damages; failing which the balance of convenience applies (Giella v Cassman Brown).
  • The burden of proving a prima facie case requires a clear and unmistakable right directly threatened, on a balance of probabilities (Nguruman Limited v Jan Bonde Nielsen).
  • Where land is registered in the name of a community for the benefit of all its members, any orders issued should be for the benefit of the members.

Court orders

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  1. 1.Pending further directions from the court, no subdivision and/or hiving off of all the land known as L.R. No. Taita Taveta Sagala/Ndara 'B'/20 by either party
  2. 2.The matter be and is hereby referred to Court Annexed Mediation
  3. 3.The Deputy Registrar to appoint a duly accredited mediator whose terms of reference shall be to bring the parties together and determine the issues as they appear in the pleadings amongst other issues
  4. 4.The matter to be mentioned thereafter to report on the outcome of the Court Annexed Mediation and/or issuance of further directions

Authorities

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Legislation

  • Community Land ActNot specified (2016 Act referenced by Defendants)
  • Constitution of KenyaArticle 159(2)(c)
  • Civil Procedure (Court Annexed Mediation) Rules2022 Rules

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Article 159(2)(c) of the Constitution; inherent civil jurisdiction (Environment and Land Court Act); Civil Procedure (Court Annexed Mediation) Rules, 2022

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, "Ndara B Community v Mwandoe & 7 others (Environment & Land Case E004 of 2024)  (Environment and Land) [2024] KEELC 4116 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4116/eng@2024-05-09

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