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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6306 (KLR)

Keresheu v Kosai & 8 others (Environment & Land Case 6 of 2018) [2024] KEELC 6306 (KLR)

Environment and Land Court
26 September 2024
LKL. Komingoi
1,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kajiado court let a long-term occupant stay on disputed land and halted subdivision, but refused to evict the defendants before trial.

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 Kajiado (L. Komingoi, J) on a Notice of Motion dated 11th October 2023 by the Plaintiff, Parsapiyo Ole Keresheu, in a land dispute over Kajiado/Ewaso Kedong/1273. The Plaintiff, claiming occupation of the suit land for over forty years and alleging fraudulent registration of the 3rd and 4th Defendants, sought injunctions restraining encroachment and illegal logging, preservation of the status quo of occupation, orders to the Area Forest Officer, Police and Chief to enforce compliance, suspension of subdivision of parcels 1271 and 1272 to allow a surveyor's report, and registration of a caution. The application was opposed by the 3rd Defendant, Oltetia Ole Konte, who asserted the Defendants held title allocated by Ewaso Group Ranch and characterized the Plaintiff as an impostor; he relied on Giella v Cassman Brown and Yego v Tuya. The court framed two issues: whether the threshold for a temporary injunction was met, and costs. Applying Giella and the Court of Appeal's definition of a prima facie case in Mrao Ltd v First American Bank, the court found the 3rd Defendant's own replying affidavit confirmed the Plaintiff remains in occupation, and held that an unsigned and internally inconsistent Phase 2 register could not be relied upon. Prayer 2 was refused as it would amount to evicting the 1st and 2nd Defendants. The court ordered that the Plaintiff remain in occupation pending trial, stopped subdivision of parcels 1271 and 1272 until a surveyor files a report within 45 days, and ordered costs of the application to abide the outcome of the main suit. Judgment delivered virtually at Kajiado on 26th September 2024.

Key legal issues

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01

Whether the Applicant met the Giella v Cassman Brown threshold for a temporary injunction

Holding

Yes, in part. The court found the Applicant, who has occupied the suit property for over forty years and whose alleged Phase 2 allocation was not substantiated by a signed register, had established sufficient basis to maintain occupation pending trial, but not to dispossess the 1st and 2nd Defendants.

Reasoning

Applying Mrao Ltd v First American Bank, the court assessed whether a right had apparently been infringed. The 3rd Defendant admitted the Plaintiff was a member of Ewaso Kedong Group Ranch and admitted he remains on the suit property ('stay put to date'). The register purporting to show a Phase 2 allocation was unsigned and internally inconsistent, so the court could not rely on it. Occupation was preserved, but orders that would evict the 1st and 2nd Defendants were declined.

p. 4
02

Whether subdivision of adjacent parcels should be halted to facilitate a boundary survey

Holding

Yes. Subdivision of parcels 1271 and 1272 is stopped until the surveyor files a report within 45 days.

Reasoning

The court accepted that subdivision would complicate the surveyor's report on the boundary dispute over L.R. 1273 and made the order to enable the dispute to be fixed for pre-trial, hearing and final determination.

p. 4

Legal principles established

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  • A prima facie case in a civil application is one in which, on the material presented, a tribunal properly directing itself concludes that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.
  • An unsigned register cannot be relied upon by the court as evidence.

Court orders

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  1. 1.That the Plaintiff/Applicant remains in occupation of the land known as Kajiado/Ewaso Kedong/1273 pending the hearing and determination of this suit.
  2. 2.That an Order is hereby issued stopping the sub-division of Kajiado/Ewaso Kedong/1271 and 1272 until the surveyor finalizes the report to be filed in this court within 45 days from the date of this ruling.
  3. 3.That costs of this application do abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure RulesOrder 50(1), Order 40(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63
  • Constitution of Kenya, 2010Articles 50 and 159

Cases cited (6)

  • Douglas Musa Machage v Samuel Ngigi Karuri & Another
    Nakuru ELC 43B of 2016
  • Nyali Beach Cycads Ltd v Francis Kamau Guchu & 2 Others
    Machakos ELC E002 of 2020
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Yego v Tuya
    (1986) KLR 726
  • American Cyanamid Co. v Ethicon Limited
    (1975) 1 ALL ER 506; (1975) A.C. 396 HL at 510
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Orders 50(1), 40(1,2), Sections 1A, 1B, 3, 3A & 63 of the Civil Procedure Act/Rules and Articles 50 & 159 of the Constitution of Kenya 2010 (as invoked in the Notice of Motion)

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, "Keresheu v Kosai & 8 others (Environment & Land Case 6 of 2018) [2024] KEELC 6306 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6306/eng@2024-09-26

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