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ELCOtherNot stated in the judgment text provided· [2024] KEELC 6215 (KLR)

Ekaterra Tea Kenya PLC v Chepkwony & 2 others (Environment & Land Case E021 of 2022) [2024] KEELC 6215 (KLR)

Environment and Land Court
26 September 2024
4,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court let Unilever Tea stay on its Kericho land but stopped short of a full injunction, ordering both sides to keep things exactly as they were.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Unilever Tea Kenya Limited, moved the Environment and Land Court at Naivasha by Notice of Motion dated 5th December 2022 under Sections 1A, 1B and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking an interim injunction restraining the 1st Defendant from interfering with LR 4098/2 (IR 3939) and LR 4433/5 in Kericho, plus police supervision of enforcement. The Applicant claimed registered proprietorship by Grants dating from 1920 and 1929, asserted indefeasibility under Section 26 of the Land Registration Act, and contended that the 1st Defendant's 2019 Certificate of Title over LR 4433/5, an outspan of about 20 acres across River Jamji within its properties, was unlawful and null ab initio as the land was unavailable for allocation. The 1st Defendant countered that he was lawfully allotted the parcel in 1999 and that the parcels were distinct. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, Justice M.C. Oundo held that title validity could not finally be determined at the interlocutory stage, but noted the Applicant's long, uncontroverted occupation and investment. Absent evidence of prejudice to the 1st Defendant or of his possession of the contested parcel, the Court invoked Mugah v Kunga and Practice Direction 28(k) to order maintenance of a clearly defined status quo: the Applicant to remain in occupation as at filing of suit, no interference with either parcel, until final determination. Costs of the application were reserved to the cause.

Key legal issues

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01

Whether the Applicant established a prima facie case with probability of success

Holding

The Court found the Applicant had demonstrated long occupation and heavy investment in the suit properties, uncontested by the 1st Respondent, but declined final determination of title validity at interlocutory stage

Reasoning

The Court noted that both parties hold titles to the parcels in contention and that the validity of the titles could not be determined at the interlocutory stage. However, the Applicant's occupation since 1929 and 1969 and its investment in tea and tree planting were uncontroverted. Injunction being an equitable remedy, the Court considered conduct, proportionality and equality of arms, and opted to preserve the status quo rather than grant a full injunction.

p. 7
02

Whether irreparable injury would be suffered absent an injunction

Holding

No evidence showed the 1st Respondent would suffer prejudice; equally he had shown no possession or activity on the contested parcel

Reasoning

The Court observed that the 1st Respondent had neither contested nor demonstrated that he would suffer irreparable injury or prejudice if interim orders issued. Further, no evidence was adduced of his possession or occupation of the contested parcel or of any economic or social activity carried out thereon. This weighed in favour of preserving the status quo pending full hearing.

p. 7
03

Whether an interim injunction should issue

Holding

The Court declined a conventional injunction and instead issued a defined status quo order for preservation and case management

Reasoning

Relying on Mugah v Kunga and Practice Direction No. 28(k) under Gazette Notice No. 5178/2014, the Court held that status quo orders preserve the subject matter in land disputes. It defined the status quo as the Applicant remaining in occupation of LR 4098/2 (IR 3939) and LR 4433/5 as at filing of suit, with no interference by any party, until final determination.

p. 7

Legal principles established

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  • In land matters status quo orders should be issued to preserve the subject matter
  • A registered title is prima facie evidence of absolute and indefeasible ownership subject to challenge on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corruption

Court orders

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  1. 1.An order of status quo to be maintained by all parties, the Plaintiff/Applicant remaining in occupation of LR 4098/2 (IR 3939) and LR 4433/5 as at the time of filing suit
  2. 2.No interference with parcel registration LR 4098/2 (IR 3939) and LR 4433/5
  3. 3.Status quo to be maintained until the matter is finally heard and determined
  4. 4.Costs of the application dated 5th December 2022 to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Environment and Land Court ActSection 13
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2
  • Land Registration ActSection 26 (1)
  • Land Act, 2012Sections 12, 15, 16, 162, 7
  • Government Lands Act (repealed)Section 85 (1)
  • Crown Land Ordinance (repealed)Sections 14 and 29
  • Constitution of KenyaArticle 40 (1)
  • Gazette Notice No. 5178/2014 Practice Direction No. 28(k)Practice Direction No. 28(k)

Cases cited (7)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Suleiman v Amboseli Resort Limited
    [2004] KLR 589
  • Muhia Daniel Kimeu & Another v Equity Bank Kenya Limited & Another
    [2017] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR / (2003) KLR 125
  • David Ndii & others v Attorney General & others
    [2021] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No. 23 of 2009
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Section 13 of the Environment and Land Court Act; Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Ekaterra Tea Kenya PLC v Chepkwony & 2 others (Environment & Land Case E021 of 2022) [2024] KEELC 6215 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6215/eng@2024-09-26

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