[2017] KEELC 3423 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

ELC CAUSE NO. 244 OF 2017

MARARIANTA CAMP LIMITED…………………………PLAINTIFF

-VERSUS-

JOSEPH TUBULA OTUNI……………………………….DEFENDANT

RULING

The Application before me is dated 15th February, 2017 and was brought under Order Rule 40 1, 2 and 3 of the Civil Procedure Rules 2010 and under Order 51 (1) Section 3A of the Civil Procedure Act.

The Applicant in the said Application prays for the following orders:-

1. THAT a temporary order of injunction do issue restraining the Defendant/Respondent herein by themselves, their agents, servants and or authorized representatives from grazing his cattle, or in any other way interfering with the Applicant’s quite possession of its leased parcel No. CIS-MARA/KOIYAKI-DAGURUGURUETI/87 until the hearing and determination of this Application inter-partes.

2. THAT an interlocutory order of injunction do issue restraining the Defendant/Respondent herein by themselves, their agents, servants and or authorized representatives from grazing is cattle, or in any other way interfering with the applicants’ quite possession of its leased parcel No. CIS-MARA/KOIYAKI-DAGURUGURUETI/87 until the hearing and determination of this suit.

3. THAT the Officer Commanding Narok Police Station to ensure compliance of the order.

The said Application is based upon the following:-

1. That the Plaintiff is the registered lessee of a parcel of land known as CIS-MARA/KOIYAKI-DAGURUGURUETI/87.

2. That the Defendant/Respondent had encroached on the suit land and grazed his cattle without any colour of right.

The Application is further supported by the Affidavit of Amin Merali Sworn and dated 15th February, 2017.

The Applicant contends that Mararianta Camp Limited he is the registered lessee of the parcel of land for a term of 35 years paying an annual rent of kshs. 2,500,000 and that while been on the aforesaid land, the Respondent has encroached on the said land and started grazing his cattle on the said land and hence has deprived the Applicant of the use and enjoyment of the property.

The Respondent in opposing the Application, has filed a Replying Affidavit sworn and dated on 8th March, 2017.

The Respondent contends that whereas it is true that he leased the suit land to the Applicant for a period of 25 years commencing on 1st February, 2011 and not 35 years as the Applicant claims.

The Respondent further contends that he leased the land with the sole belief that the Applicant would construct a tented camp or lodge on the parcel of land with auxiliary services upon execution of the lease and that the rent reserved shall be paid upon completion and the annual rent shall become due and payable, however, the Applicant is yet to commence construction.

The Respondent denies encroaching on the parcel of land and grazing his cattle thereon since he is a resident of Narok town. The Respondent in his Replying Affidavit states that he has invoked the provision of clause 5 of the Lease Agreement with a view of terminating the lease entirely since the Applicant has not commenced development on the land and he has not been paying the rent due and payable.

I have read the application and listened to submissions by counsel for both the Applicant and the Respondent and the issues for determination at this stage are the following:-

(i) Whether the Applicant is the lawful lessee of the parcel of land known as CIS-MARA/KOIYAKI-DAGURUGURUETI/87.

(ii) Whether the Respondent has encroached on the said parcel of land and hence interfered with the Applicant quiet and peaceful enjoyment of the land.

On the first issue of whether the Applicant hold a lease to the said land, both the parties don’t dispute the said fact as shown in their respective Supporting Affidavits though the Applicant contends he has a lease of 35 years and the Respondent states that the term is for 25 years. I have looked at the annextures “JKT2” and I agree with the Respondent that the term of the lease is for a period of 25 years.

On the 2nd issue is whether the Respondent has encroached on the said parcel. I find no evidence whatsoever by way of the date of encroachment or photographs of cattle grazing on the parcel of land and in any event the Respondent states that he is a resident of Narok town and it will be uneconomical and unreasonable to be taking his cattle to the suit land in Trans Mara for grazing.

In determining an Application of this nature, the courts have always looked at the principles laid down under GEILLA –VERSUS- CASSMAN BROWN (1973)EAand the principles are:-

1. Whether the Applicant has demonstrated a prima facie case with a probability of success

2. If damages would be adequate compensation

Having perused the file and listened to the submission by the counsel I find that the Applicants case has no chances of success as he is unable to proof the encroachment and grazing on the land. Further to the above, I also find that the Applicant has not demonstrated that he has been paying the rent reserved under the lease and also he has failed to show that he has indeed started construction of the tented camp.

In a nutshell, I find that the Applicants application dated 15/2/17 lacks merit and I dismiss the same and I vacate the interim orders granted on 21/2/17. Costs in the cause.

It is so ordered.

DATED, SIGNED and DELIVERED in open court atNAROKon this16THday ofMARCH 2017

Mohammed Noor Kullow

Judge

16/3/17

In the presence of:-

Mr. Ole Yenko for the Plaintiff

Ms. Njoroge for the Respondent

CA:Timothy

Mohamed Noor Kullow

Judge

16/3/17