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ELCAllowedNarok ELC Case (notice of motion dated 21st June, 2024)· [2024] KEELC 6593 (KLR)

Losokwan Camp Limited v Maasai Mara Landowners Conservancy Limited & another (Environment & Land Case E013 of 2024) [2024] KEELC 6593 (KLR)

Environment and Land Court
9 October 2024
3,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Narok court ordered conservancy landowners to stop blocking a tourism camp's access roads, protecting business access pending full trial.

What this practically means

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Executive summary

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The plaintiff, Losokwan Camp Limited, operates a tourism business on parcel Cis-Mara/Lemek/6541 within Lemek Conservancy, Narok County, where it has been in operation since 2007. By a notice of motion dated 21st June 2024 under the Civil Procedure Act, the Environment and Land Court Act and Order 40 of the Civil Procedure Rules, it sought temporary injunctions restraining the defendants from interfering with its use of the suit property and its use of public access roads and crossing points within the conservancy, alleging that the defendants had erected barriers blocking access, harassed its employees, and pressured it to join the 1st defendant's conservancy in violation of its freedom of association under Article 36. The defendants opposed, contending that the roads are private, curved out of individually owned parcels forming the conservancy, and that barriers are necessary for security, wildlife management and accountability, so unrestricted use would amount to trespass contrary to their Article 40 property rights. The court, applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, found that the plaintiff had established a prima facie case because its occupation since 2007 was unchallenged and the defendants' operations were recent; that the defendants did not deny the intimidation and harassment, evidencing irreparable loss through cancelled bookings; and that the balance of convenience favoured the plaintiff. The motion dated 21st June 2024 was allowed with a temporary injunction pending determination of the suit, enforcement under the supervision of the OCPD Mulot, and costs in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case

Holding

Yes. The plaintiff's occupation of the suit property since about 2007 was unchallenged and the defendants' operations commenced only recently, so an apparent legal right calling for rebuttal was shown.

Reasoning

The court applied Mrao Ltd v First American Bank definition of a prima facie case. The defendants did not dispute that the plaintiff had operated Losokwan Camp within Lemek Conservancy since 2007, nor did they deny acts of intimidation and harassment of the plaintiff's employees. The duration of occupation was unchallenged, establishing an apparently infringed legal right requiring explanation or rebuttal.

p. 5
02

Whether the plaintiff demonstrated irreparable harm not compensable by damages

Holding

Yes. Threats to the plaintiff's utilization of the suit property demonstrated irreparable loss; the defendants did not deny the harassment and intimidation, and bookings had been cancelled and tourists relocated.

Reasoning

Applying Pius Kipchirchir Kogo v Frank Kimeli Tenai on irreparable injury, the court noted the plaintiff's evidence of cancelled bookings and relocation of tourists to Mara Bella Camp due to the barriers. The defendants distanced themselves from the loss and never denied the intimidation of employees. The court found a threat to utilization of the suit properties demonstrating irreparable loss.

p. 6
03

Where the balance of convenience lies

Holding

In favour of the plaintiff, since the inconvenience if the orders were withheld would be greater for the plaintiff than for the defendants.

Reasoning

Having found a prima facie case and irreparable harm, the court proceeded to the third Giella condition. It held that the inconvenience caused if the injunction were refused would be greater for the plaintiff, whose tourism business depends on access, than for the defendants, and accordingly granted the interlocutory relief with police supervision.

p. 6

Legal principles established

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  • The grant of a temporary injunction requires the applicant sequentially to establish a prima facie case, irreparable injury not compensable in damages, and that the balance of convenience lies in its favour.

Court orders

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  1. 1.A temporary injunction, pending the hearing and determination of the suit, restraining the defendants/respondents from interfering with the plaintiff's use of parcel Cis-Mara/Lemek/6541 in its tourism business, its lawful usage of the public access roads in Lemek conservancy and its free ingress and egress via the Elephant/Naserian, Losokwan, Ndagurugurieti and airstrip Mara River barriers and any other crossing points within Lemek Conservancy, Narok County
  2. 2.The orders to be enforced by and/or under the supervision of the Officer Commanding Police Division (OCPD) Mulot, Narok County
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(c) and (e)
  • Environment and Land Court ActSections 13 and 19(2)
  • Civil Procedure RulesOrder 40 Rules 1(a), 2(a) and 10(b)
  • Constitution of KenyaArticle 36 (freedom of association) and Article 40 (protection of property rights)

Cases cited (6)

  • Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Mistry Amara Singh versus Serwano Wofunira Kulubya
    (1963) EA 408
  • Nguruman Limited versus Jan Bonde Nielsen & 2 Others
    [2014] eKLR; CA No. 77 of 2012
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    [2018] eKLR
  • Giella versus Cassman Brown & Company
    (1973) EA 358
  • Dr. Simon Waiharo Chege vs. Paramount Bank of Kenya Ltd.
    Nairobi (Milimani) HCCC No. 360 of 2001
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A & 63(c) and (e) of the Civil Procedure Act; Sections 13 and 19(2) of the Environment and Land Court Act; Order 40 Rules 1(a), 2(a) & 10(b) of the Civil Procedure Rules

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, "Losokwan Camp Limited v Maasai Mara Landowners Conservancy Limited & another (Environment & Land Case E013 of 2024) [2024] KEELC 6593 (KLR)", Case Analysis (2024). Narok ELC Case (notice of motion dated 21st June, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6593/eng@2024-10-09

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