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ELCDismissedNot stated on the face of the judgment (Notice of Motion dated 14th February 2024, ELC, Nairobi)

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)

Environment and Land Court
13 June 2024
7,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs/Applicants, three officials and members of Yasego Society, sought temporary injunctions restraining the Defendants from selling, transferring, developing, evicting, demolishing or interfering with structures on LR No. 28401, contending that society members had occupied the land since 2004 and acquired adverse possessory rights. The 2nd Defendant/Respondent, claiming to be the lawful registered proprietor, opposed, denying the Applicants' occupation and asserting the structures were the 1st Defendant's, erected to defeat her title. The court framed three issues: competence of the application, prima facie case, and appropriate orders. On competence, the court held the application vitiated because the supporting and further affidavits were sworn by Peter Ndungu Mutiga, a non-party whose authority to act, signed by only one of three applicants and a non-party, was defective under Order 1 Rule 13(2) of the Civil Procedure Rules; a society can sue only through registered officials. On the prima facie case, only one applicant was a registered official, raising doubts about standing; photographs lacked the Section 106B Evidence Act electronic certificate and were worthless; letters from the assistant chief, church and Nyumba Kumi elders were unverified by affidavit, per the Supreme Court's guidance in Muthuuri. Finding no prima facie case, the court, applying Nguruman's sequential hurdles, declined to consider irreparable loss or balance of convenience. The application dated 14th February 2024 was dismissed, the interim status quo orders were vacated, and each party was to bear its own costs insofar as the dismissed issues were not canvassed by the 2nd Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application beforehand is competent or otherwise
  2. 2.Whether the Applicant has established and demonstrated the existence of a prima facie case with probability of success
  3. 3.What orders if any, ought to be granted?

Key legal issues

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01

Competence of the application given the supporting affidavits sworn by a non-party

Holding

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

Reasoning

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.

p. 9
02

Whether a prima facie case with probability of success was established

Holding

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

Reasoning

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.

p. 11
03

What orders ought to be granted

Holding

None: having failed to establish a prima facie case, the applicant was not deserving of the equitable orders of injunction sought

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 1.The Application dated the 14th February 2024 is dismissed
  2. 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. 3.The Interim Orders of Status Quo which had hitherto been granted are vacated and/or discharged

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 15

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

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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.
p. 15Final orders - dismissal of the Notice of Motion
Furthermore, the Interim Order[s] of Status Quo which had hitherto been granted be and are hereby vacated and/ or discharged.
p. 15Vacation of interim status quo orders
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.
p. 9Supporting affidavit by non-party vitiates application
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.
p. 12Electronic evidence certification
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.
p. 15Sequential application of Giella conditions (adopted from Nguruman)

Issues in the judgment

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minor

The suit/case number is not stated anywhere in the judgment; only the application date (14th February 2024) identifies it

minor

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

minor

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

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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, "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.