Ndara B Community v Mwandoe & 7 others (Environment & Land Case E004 of 2024) (Environment and Land) [2024] KEELC 4116 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff met the Giella v Cassman Brown criteria for a temporary injunction
No temporary injunction was granted; the Plaintiff failed to demonstrate entitlement to the orders sought.
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.
Whether Benjamin Mwandaa had authority to swear the supporting affidavit for the Plaintiff
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.
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.
Whether the intra-community dispute should be referred to Court Annexed Mediation
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.
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.
Legal principles established
#- 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
#- 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.The matter be and is hereby referred to Court Annexed Mediation
- 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.The matter to be mentioned thereafter to report on the outcome of the Court Annexed Mediation and/or issuance of further directions
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.