Owino & 2 others (Suing as the officials and members of Yasego Society) v Meron Limited & another (Environment & Land Case E010 of 2024) [2024] KEELC 4839 (KLR)
The bottom line
#The Environment and Land Court dismissed Yasego Society's bid to stop their eviction because the wrong person swore the supporting affidavit and the evidence was defective.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application beforehand is competent or otherwise
- 2.Whether the Applicant has established and demonstrated the existence of a prima facie case with probability of success
- 3.What orders if any, ought to be granted?
Key legal issues
#Competence of the application given the supporting affidavits sworn by a non-party
The application is incompetent: the supporting and further affidavits were sworn by Peter Ndungu Mutiga, who is neither a named applicant nor duly authorised, leaving the application without evidential foundation
The suit was filed by three named persons on behalf of Yasego Society, but the supporting and further affidavits were sworn by Peter Ndungu Mutiga, who is not named in the pleadings. The authority to act relied upon was signed by only one of the three applicants and a non-party. Order 1 Rule 13(2) permits authority only between co-parties. A society can sue only through its registered officials. The disconnect between the applicants and the deponent vitiates the application.
Whether a prima facie case with probability of success was established
No prima facie case was established: doubts as to legal standing of the applicants, photographs lacked Section 106B certification, and third-party letters were unverified by affidavit
Only one named applicant (Stephen Otieno Owino) appears among the society's registered officials per the Registrar's letter of 4 June 2018, casting doubt on standing. Photographs were not accompanied by an electronic certificate under Section 106B of the Evidence Act and thus lack probative value. Letters from the assistant chief, the church and Nyumba Kumi elders were unverified by affidavit. Capacity to sue goes to the root of the suit, so the court could not find a prima facie case.
What orders ought to be granted
None: having failed to establish a prima facie case, the applicant was not deserving of the equitable orders of injunction sought
Applying Giella v Casman Brown and the sequential approach in Nguruman, once the applicant failed at the first hurdle of a prima facie case, the court need not consider irreparable loss or balance of convenience. The application was therefore dismissed and the interim status quo orders vacated.
Legal principles established
#- A society registered under the Societies Act can only sue and be sued through its registered officials
- An authority to act under Order 1 Rule 13(2) of the Civil Procedure Rules can only be executed in favour of a co-plaintiff or co-defendant, not a third party deponent
- Photographs annexed to an affidavit without the electronic certificate required by Section 106B of the Evidence Act have no probative value
- The three Giella conditions are sequential hurdles; if no prima facie case is established, irreparable injury and balance of convenience need no consideration
- Documents authored by third parties who are not litigants must be verified by affidavit to have evidential value
Court orders
#- 1.The Application dated the 14th February 2024 is dismissed
- 2.Each party shall bear own costs insofar as the pertinent issues upon which the application has been dismissed were not canvassed by the 2nd Defendant/Respondent
- 3.The Interim Orders of Status Quo which had hitherto been granted are vacated and/or discharged
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (interlocutory application in a suit over LR No. 28401); not expressly cited in the judgment
Relief refused
#Orders of temporary injunction restraining the Defendants from selling, transferring, developing, evicting, removing or demolishing the Applicants' houses/structures on LR No. 28401, and ancillary enforcement orders
The application was incompetent (supporting affidavits sworn by a non-party without lawful authority) and the Applicant failed to establish a prima facie case with probability of success
Costs
Each party shall bear own costs insofar as the pertinent issues upon which the application has been dismissed were not canvassed by the 2nd Defendant/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Application dated the 14th February 2024 be and is hereby dismissed.
Furthermore, the Interim Order[s] of Status Quo which had hitherto been granted be and are hereby vacated and/ or discharged.
there being no supporting afidavit by and on behalf of the three named persons, who have filed the suit on behalf of the Plaintifi/Applicant, there is no evidential basis or foundation that has been placed before the court to anchor the application for temporary injunction.
In the absence of the mandatory electronic certificate in line with the provisions of Section 106B of the Evidence Act [supra] it sufices to point out that the photographs under reference are devoid of probative value. Same are worthless in the eyes of the law.
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.
Issues in the judgment
#The suit/case number is not stated anywhere in the judgment; only the application date (14th February 2024) identifies it
Contradictory averment dates on the year of entry relied on by the parties are noted in argument but the judgment does not reconcile the Applicants' own inconsistent assertions of entry in 2000 versus 2004
The first respondent's submissions heading is inconsistently labelled ('1St Respondent's Submissions' though the party is the 1st Defendant/Respondent) and the 1st Defendant's name is never given in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owino & 2 others (Suing as the officials and members of Yasego Society) v Meron Limited & another (Environment & Land Case E010 of 2024) [2024] KEELC 4839 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (Notice of Motion dated 14th February 2024, ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4839/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.