Marigat Group Ranch v Kessei

5. Aggrieved by the decision of the trial court, the 1st respondent appealed to this court on seven grounds that can be reduced to one broad ground namely that the learned trial magistrate erred by allowing the plainti’/respondent’s application for temporary injunction. 6. Pursuant to directions given on 13th December 2023, the appeal was disposed o by way of written submissions. 7. The appellant through its submissions led on 23rd February 2024, asserts it’s contention that the learned trial magistrate erred by determining that the plainti/ respondent had established a prima facie case with probality of success and granting him an order of temporary injunction pending the hearing and determination of the suit. According to the appellant, the plainti did not establish a prima facie case with probability of success as he did not prove that he was a member of the 1st defendant/ appellant; that despite having had opportunity to join the 1st defendant as a member or to le objection challenging his alleged omission from registration as a member of the 1st defendant/appellant, the plainti/respondent did not join the defendant/appellant. 8. The appellant acknowledges that the plainti/respondent is in use and occupation of a portion of the suit land but contends that the plainti/respondent entered the portion of the suit land in dispute in 2006 and that it issued him with demand letters to vacate the suit land to no avail. 9. It is the appellant’s case that it demonstrated that the respondent had no locus standi to bring the suit as he is not its member nor the legal representative of the estate of Kipkessei Chesang, deceased, (his grandfather) and that he did not seek leave of the court to institute a representative suit and/or obtain a written authority from those he purports to represent. 10. It is the appellant’s case/submission that the issue of capacity to sue goes to the root of the suit and that the issue of capacity is not a procedural technicality. Based on the provisions of Order 1 Rule 8 and 13 of the Civil Procedure Rules 2010, the appellant urges this court to nd that the respondent did not have capacity to sue. 11. Citing the denition of a prima facie case given in Mrao Limited v. First American Bank of Kenya Limited & 2 Others (2003)KLR, the appellant submits that the respondent did not establish that a right exists which had been infringed to warrant an order of temporary injunction being issued in his favour. 12. Terming the order of temporary injunction issued in favour of the respondent prejudicial to it, the appellant laments that it curtailed its mandate to deal with the suit land for the benet of its members. 13. The appellant further submits that the learned trial magistrate failed to take into account that it has 6000 acres which can still be allocated to the respondent in the event that he succeeds in his suit and that there were glaring jurisprudential issues which militated against the respondent’s claim namely limitation and capacity. 14. At the time of writing this judgment, the respondent’s submissions were not in the court le. Analysis and determination 15. From the evidence, pleadings, adavit evidence adduced before the lower court and the submissions led in this appeal, it is not in dispute that the plainti/respondent and/or the people he represents are in use and occupation of the suit property. According to the appellant, the plainti/respondent and/ or the people he represents entered the suit land in 2006. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14190/eng@2024-05-15 2

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16. The plainti/respondent’s claim is that they were in use and occupation of the suit property long before the 1st defendant/appellant was incorporated; that despite having been in use and occupation of the suit land they were not registered as members of the 1st defendant and that their attempts to get registered as members of the 1st defendant/appellant or to get the 1st defendant/ appellant recognize their rights and interest in the portion of the suit land they occupy have been futile. 17. Based on the uncontroverted fact that the plainti/ respondents are in use and occupation of a portion of the suit land and that they have been in use of that portion for a long period of time (over 15 years from the time they allegedly trespassed in the suit land), and there being evidence that the 1st defendant had plans to donate the land occupied and claimed by the plainti to a third party, (a school), I am satised that the plainti demonstrated sucient interest (arising from the long period of use and possession of the suit property) that required protection of the court pending the hearing and determination of the suit. 18. My assessment of the peculiar circumstances of this case is that there is certainity as to who the plainti is or are. The mere claim by the plainti that he has brought the suit on his own behalf and on behalf of other persons not named in the plaint, does not render the suit fatally defective to warrant denying the orders sought. 19. The upshot of the foregoing is that the appeal herein is found to be lacking in merit and is dismissed with costs to the plainti/respondent. 20. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT ITEN THIS 15TH DAY OF MAY, 2024. L. N. WAITHAKA JUDGE Judgment delivered electronically in the presence of:N/A for the Appellant N/A for the 1st, 2nd & 4th respondents Ms. Tigoi for the 3rd & 5th respondents Court Asst.: Christine Towett https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14190/eng@2024-05-15 3

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