[2022] KEELC 2056 (KLR)
The court found that the plaintiffs had established a prima facie case with a probability of success, as the core issue of their membership in the group ranch had not been determined on merit in previous suits. The balance of convenience favored the plaintiffs, who stood to suffer irreparable harm if the ranch was...
Source-derived case information.
- Citation
- [2022] KEELC 2056 (KLR)
- Parties
- Plaintiff: John Lemarpe Tamei & 416 Others; Defendant: Maimpi Kayie & 9 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2019
- Procedural Posture
- Notice of Motion / Interlocutory Application Ruling
- Outcome
- Application allowed; interlocutory injunction granted.
- Judges
- JE Gicheru
- Legal Topics
- Group Ranch Membership, Interlocutory Injunctions, Res Judicata, Land Subdivision Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Lemarpe Tamei & 416 Others
Plaintiff
Maimpi Kayie & 9 Others
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of an interlocutory injunction restraining the defendants from subdividing or allocating the group ranch pending determination of the suit.
- 2 Whether the suit is res judicata in light of previous cases involving the same parties and subject matter.
- 3 Whether striking out the suit would violate the plaintiffs' right to a fair hearing under Article 50(1) of the Constitution.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case with a probability of success, as the core issue of their membership in the group ranch had not been determined on merit in previous suits. The balance of convenience favored the plaintiffs, who stood to suffer irreparable harm if the ranch was subdivided before their claims were adjudicated. The court rejected the preliminary objection on res judicata, noting that the central issue of membership had not been conclusively resolved in earlier proceedings. The court also emphasized that striking out the suit would be a draconian step, potentially infringing the plaintiffs' constitutional right to a fair hearing....
Court Disposition
Application allowed; interlocutory injunction granted.
Orders
- The defendants are restrained by themselves and anybody acting through them from convening an Annual General Meeting whose agenda would be to subdivide or allocate the 10th Defendant, Torosei Group Ranch, pending the hearing and determination of this suit.
- The orders issued by this Court are to be served upon the OCPD Kajiado and the County Land Adjudication and Settlement Officer for enforcement and compliance.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT KAJIADO
ELC SUIT NO. 99 OF 2019
JOHN LEMARPE TAMEI & 416 OTHERS..................................................PLAINTIFFS
-VERSUS-
MAIMPI KAYIE & 9 OTHERS....................................................................DEFENDANTS
RULING
This ruling is on the Notice of Motion dated 1st November, 2019.
The said motion which is under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, Sections 1A, 3, 3A, and 63 (e)of the Civil Procedure Act and the inherent –power and jurisdiction of the Court seeks the following prayers;
1. That the Defendant be restrained by themselves and anybody acting through them from convening an Annual General Meeting whose agenda would be to subdivide or allocate the 10th Defendant namely Torosei Group Ranch pending the hearing and determination of this suit.
2. That the orders issued by this Court be served upon the OCPD Kajiado and the County Land Adjudication and Settlement Officer for enforcement and compliance.
3. That costs be provided for.
The grounds for seeking the above orders can be summarized by stating that the applicants are members of the Group Ranch having been born and brought up there. They are apprehensive that the Respondents may subdivide the ranch and exclude them.
Further, the Respondents have issued a Certificate to the effect that the applicants are not members of the Group Ranch. They have also applied for consent from the relevant Land Control Board for subdivision and unless restrained, they will proceed to subdivide the ranch to the detriment of the applicants.
The applications is supported by an affidavit of John Lemarpe Tamei in which he deposes that though there have been two cases at the Magistrates Court and at the High Court respectively, they have been excluded from the list of beneficiaries of the Group Ranch.
None of the cases has been determined on merit.
Annexed to the affidavit are several annexures which include a Certificate of Confirmation dated 1/8/2016 which states that the applicants are not registered members of the Group Ranch.
In opposing the Notice of Motion, the 10th Defendant has filed a Notice of Preliminary Objection dated 13th September, 2021 urging that the suit is Res Judicata since the Plaintiffs filed case no 236 of 2011 and 180 of 2012 relating to the same parties over the same subject matter, that the application is frivolous in nature and the entire suit has been filed in violation of Order 53 of the Civil Procedure Rules.
Counsel for the parties filed written submission on 4th March, 2021 and 8th November, 2021 respectively.
I have carefully considered the application in its entirety including the affidavits, annexures, grounds and the case law cited in the submissions.
I find that the Plaintiffs have established a prima facie case with a probability of success. The balance of convenience also tilts in their favour.
The Plaintiffs stand to suffer immensely if the Group Ranch is subdivided without them getting land that they claim to be entitled to.
Secondly, I find that none of the former suits has decided on whether or not the Plaintiffs are members of the Group Ranch yet that is the crux of the matter in this case.
Finally, I find that striking out a suit is a draconian move that will result in the derogation of the right to a fair hearing enshrined in Article 50(1)of theConstitution.
For the above reasons I allow the application dated 1st November, 2019.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 18TH DAY OF JANUARY, 2022
M.N. GICHERU
JUDGE