Birika & 3 others v Seme & another [2023] KEELC 20288 (KLR) | Community Land Management | Esheria

Birika & 3 others v Seme & another [2023] KEELC 20288 (KLR)

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Birika & 3 others v Seme & another (Miscellaneous Application E008 of 2022) [2023] KEELC 20288 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEELC 20288 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Miscellaneous Application E008 of 2022

EM Washe, J

October 3, 2023

Between

Saruni Mokita Ole Birika

1st Applicant

Samson Morongo

2nd Applicant

Kateto Keko John

3rd Applicant

Moyoi Development Committee

4th Applicant

and

Michael O. Seme

1st Respondent

The Deputy County Commissioner Transmara West Sub-County

2nd Respondent

Judgment

1. The 1st, 2nd, 3rd and 4th Applicants (hereinafter referred to as “the Applicants”) through a Miscellaneous Application dated 21st of November 2022 (hereinafter referred to as “the present Application”) have sought for the following Orders against the Respondents herein;-i.For the reasons stated in the Certificate of Urgency filed herewith, this Application be certified urgent, service thereof be dispensed with in the first instance and the orders sought be granted ex-parte.(Spent)ii.Pending the inter-parte hearing and determination of this Application, this Honourable Court be pleased to issue an injunction:(Spent)a.Directed at the 1st and 2nd Respondents restraining them from removing or purporting to remove the 1st to 3rd Respondents as officials of the 4th Applicant and/or changing or interfering in any manner whatsoever with the current membership and management of the 4th Applicant.b.Directed at the 1st Respondent and any other person or official purporting to have authority other than the 1st to 3rd Applicants restraining any transaction or business related to the Lease over the Moyoi Group Ranch of the affairs of the 4th Applicant.iii.Pending the hearing and determination of the underlying suit, this Honourable Court be pleased to issue an injunction;a.Directed at the 1st and 2nd Respondents restraining them from removing or purporting to remove the 1st to 3rd Respondents as officials of the 4th Applicant and/or changing or interfering in any manner whatsoever with the current membership and management of the 4th Applicant.b.Directed at the 1st Respondent and any other person or official purporting to have authority other than the 1st to 3rd Applicants restraining any transaction or business related to the Lease over the Moyoi Group Ranch of the affairs of the 4th Applicant.iv.The costs of this Application be awarded to the Applicants.v.Any other orders this Court deems just in the circumstances.

2. The prayers sought hereinabove were supported by the grounds adduced on the body of the present Application as well as the supporting affidavit sworn by the 1st Application on the 21st of November 2022.

3. In a summary, the Applicants grounds in support of the present application are as follows;-a.The 1st to 3rd Applicants are the office holders of the 4th Applicant known as Moyoi Development Committee.b.The 4th Applicant is a Community Land Management Committee overseeing and/or managing the property known as L.R.No.transmara/Moyoi/1742 (hereinafter referred to as “the Leased Land”) on behalf of the members of Moyoi Group Ranch.c.However, the 1st Respondent being the local Member of County Assembly for Lolgorian Ward which the leased land is situated purported to orchestrate a change of the office holders of the 4th Applicant unprocedurally.d.The Applicants state that the purported meeting and/or election of new office holders by the 1st Respondent was unlawful, illegal and without proper authority under the law.e.The Applicants further state that the 1st Respondent has purported to interfer with various contracts with third parties in an effort to control and/or manage the affairs of the 4th Respondent without proper and full authority thereby interfering with the management of the leased land for the benefit of the members of Moyoi Group Ranch.f.In essence therefore, the Applicants seek this Honourable Court to grant prohibitory orders against the 1st Respondent and the 2nd Respondent from interfering and/or tempering with the list of official officer holders of the 4th Applicant or the community land in general.

4. The present Application was duly served on the 1st Respondent who opposed the same by filing a Replying Affidavit sworn on the 9th December 2022 (hereinafter referred to as “the 1st Respondent’s Replying Affidavit”)

5. According to the 1st Respondent’s Replying Affidavit, the grounds of opposing the Applicant’s prayers were as follows;-a.The 1st Respondent was the County Member of the Assembly within Narok County representing Lolgorian Ward within which the Leased Land is issue is situated.b.Similarly, the 1st Respondent was a member of Moyoi Group Ranch which is the registered owner of the Leased Land in issue.c.The 1st Respondent confirmed that the 4th Applicant was a self help group registered on the 12th of January 2011 and its license renewed on the 4th of November 2022 under Certificate No. xxxx.d.The 1st Respondent stated that the 1st to 3rd Applicants were the founding members of the 4th Applicant in the year 2011 and continued to act until 14th November 2022 when an Annual General Meeting of the 4th Applicant was convened.e.According to the 1st Respondent, the meeting of Moyoi Group Ranch passed a Resolution that new committee members be elected to replace the 1st to 3rd Applicants to act on behalf of the 4th Applicant.f.Once this Resolution was approved by the majority of the members of the 4th Applicant, the said Resolution was communicated to the Department of Social Development and a letter dated 24th of November 2022 was issued with new Office Bearers for the 4th Applicant.g.Based on the letter dated 24th of November 2022 issued by the Department of Social Development, the new office holders in execution of their lawful mandate communicated the changes in the management of the 4th Applicant to the general public and/or other third parties but the Applicants herein have refused and/or rejected to accept the new office holders as the bona fide officials thereof.h.As a result of this refusal and/or rejection of the new office holders by the Applicants herein, the management and/or functions of the 4th Applicant stand to suffer irreparable loss and harm as the new officials cannot access the bank accounts which are still managed by the 1st to 3rd Applicants.i.The 1st Respondent’s prayer therefore is that the prayers sought by the Applicants be dismissed and the new officials of the 4th Applicants be allowed to execute their mandate in accordance to the Resolution passed on the 14th of November 2022.

6. The 2nd Respondent also responded to the present Application by filing a Replying Affidavit dated 5th December 2022 (hereinafter referred to as “the 2nd Respondent’s Replying Affidavit”) on the following grounds;-a.The 2nd Respondent introduced himself as the Deputy County Commissioner of Transmara South in Narok County whose responsibility included Government co-ordination, organising peace initiatives and overseeing the implementation of the national government projects.b.The 2nd Respondent began by stating the 1st to 3rd Applicants visited his office with a complaint that the 1st Respondent was without following proper procedure appointed new committee members of the 4th Applicant.c.The 2nd Respondent upon being notified of these allegations convened a meeting with the sub-County Social Services offices to mediate the dispute relating to the new office bearers of the 4th Applicant.d.This meeting convened by the 2nd Respondent was then scheduled on the 24th of November 2022 but on the material date, the 1st to 3rd Applicants walked out and his efforts to call them back did not succeed.e.The 2nd Respondent denied ever participating in the election of the officials of the 4th Applicant or being pressured to alter the documents of the 4th Applicant to reflect the new office bearers.f.The 2nd Respondent then sought to have the present application against him be dismissed as it lacked merit.

7. In response to the two Replying Affidavits, the Applicants filed a Further Affidavit dated 16th December 2022 (hereinafter referred to as “the Applicant’s Further Affidavit”) which stated as follows;-a.The 2nd Respondent’s Replying Affidavit confirmed that indeed the 1st Respondent had through a purported meeting held on the 14th of November 2022 illegally and unlawfully elected new office bearers of the 4th Applicant.b.The 2nd Respondent had misrepresented the true facts of the proceedings which took place on the 14th November 2022 because upon being notified of the illegal meeting by the 1st Respondent, the 2nd Respondent actually went to the venue of the meeting and engaged with the group convened by the 1st Respondent.c.The Applicant stated that the 2nd Respondent is a person of influence both in the community and the government offices and therefore his involvement in the affairs of the 4th Applicant is biased towards assisting the new office bearers purportedly elected on the 14th of November 2022 at the instigation of the 1st Respondent to take over the management from the 1st to 3rd Applicants.

8. In addition to the Applicants Further Affidavit dated 16th December 2023, the Applicants filed a 2nd Further Affidavit sworn on the 14th June 2023 without leave of the Honourable Court and therefore its contents will not be considered during the determination of the present suit.

9. Once pleadings were closed, the Honourable Court directed parties to file their written submissions before the present application would be considered or determined.

10. The Applicants filed their submissions on the 17th of January 2023 while the 1st and 2nd Respondents filed their submissions on 4th July 2023 and 13th July 2023 respectively.

11. Be as it may, this Honourable Court has gone through the pleadings filed herein by the Applicants, the Responses thereof as well as the submissions and the issues for determination can be summarised as follows;-Issue No. 1 - Who Should Be The Legitimate Office Bearers Of The 4Th Applicant?Issue No. 2 - Are The Applicants Entitled to The Prayers Sought In The Present Application?Issue No.3 - Who Bears The Cost Of The Present Application?

12. This Honourable Court having duly identified the above issues for determination, then the same are discussed hereinbelow as follows;-

Issue No. 1- Who Should Be The Legitimate Office Bearers Of The 4Th Applicant? 13. The core issue in the present Application before this Honourable Court is the determination of who should be the legitimate office bearer of the 4th Applicant.

14. To be able to answer this question, the legal status of the 4th Applicant need to be exhaustively discussed to understand the nexus between the leased land it manages and the true owner of the leased land that is being managed.

15. According to the pleadings by both the Applicants and the Respondent, the Leased Land in issue is the property of Moyoi Group Ranch as contained in the Lease Agreement dated 1st June 2017 between Kilimapesa Gold (pty) Limited and itself.

16. According to the pleadings, the Group Representatives of Moyoi Group Ranch together with the general membership decided to elect 3 persons and register a separate entity to manage the Leased property for the benefit of the members.

17. These persons elected to manage the Leased property were the 1st to 3rd Applicants who then incorporated the 4th Applicant.

18. In essence therefore, the 1st to 3rd Defendants were exercising delegated powers on behalf of the general membership of Moyoi Group Ranch in the management of the Leased property.

19. This being the case, it goes without saying that the legitimate members of the 4th Applicant are the registered members of Moyoi Group Ranch with the 1st to 3rd Applicants being their elected representatives in the 4th Applicant entity.

20. The second aspect for determination under this issue is the manner in which the officials of the 4th Applicant should be elected.

21. As earlier stated, the owner of the Leased property is Moyoi Group Ranch which owns the proprietary rights.

22. Moyoi Group Ranch is a duly registered entity under the Land (Group Representatives) Act, Cap 287 with the duly registered Group Representatives who are mandated with the running of the said Group Ranch.

23. Any meeting convened on behalf a Group Ranch for any discussions about the affairs of such a Group Ranch can only be legally done through Section 15 of the Land (Group Representatives) Act, Cap 287.

24. The persons who in law who are allowed to attend a meeting of a Group Ranch are those entered in the Register of Members provided for under Section 17 of the Land (Group Representatives) Act, Cap 287.

25. Section 17 (6) of the Land (Group Representatives) Act, Cap 287 requires that the Quorum should be not less that sixty per cent of the members of the Group were present at the said meeting.

26. In the present Application, the 1st Respondent has placed before this Honourable Court Minutes of a meeting held on the 14th of November 2022 at the District Officers Office relating to Moyoi Group Ranch and a List of the Members that attended the said meeting.

27. The Honourable Court has had time to go through the Minutes of Moyoi Group Ranch for the meeting dated 14th November 2022 together with the List of Members attached thereto.

28. First and For the 1st Respondent has introduced himself as the area Member of County Assembly of Lolgorian ward who is a member of Moyoi Group Ranch and a leader of the area within which the Leased property is situated.

29. While both his leadership within the Ward and his membership in Moyoi Group Ranch is not disputed, the unfortunate aspect is that he is not one of the Group Representatives of Moyoi Group Ranch as provided for under Section 8 of the Land (Group Representatives) Act, Cap 287.

30. Secondly, the 1st Respondent did not provide any notice of a meeting for the membership of Moyoi Group Ranch as is required under Section 15 of the Land (Group Representatives) Act, Cap 287.

31. Section 15 (3) (a), (b) and (c) provides that the Group Representatives can only convene a meeting of the Group Ranch based on the following requests;-a.The Group Representativesb.A number of members of a group who together own assets registered in the group’s register whose value exceeds one-half of the value of the assets registered in respect of all the group’s members.c.The District Agricultural committee.

32. Looking at this Section, it is clear in the mind of this Honourable Court that the 1st Respondent did not have any locus to call and/or convene any lawful meeting of Moyoi Group Ranch as contained in the Minutes presented to this Honourable Court through the 1st Respondent’s Replying Affidavit.

33. In the Minutes dated 14th November 2022, there is no where that the Group Representatives of Moyoi Group Ranch have been identified and/or confirmed to be present during the said meeting.

34. Thirdly, as earlier indicated, the mandatory Quorum for any Group Ranch to hold a lawful and valid meeting is provided for under Section 15 (6) of the Land (Group Representatives) Act, Cap 287.

35. To be able to confirm that indeed a meeting raised the required Quorum, one is required to present the certified copy of the registered members of the Group Ranch as provided under Section 17 of the Land (Group Representatives) Act, Cap 287.

36. Once this certified Register is provided in Court, then a list of the members who attended the said meeting will also be presented to verify that the correct and valid members attended the said meeting and attained the threshold of Sixty per cent to be present at the said meeting.

37. The identification of the members should be based on their membership number and their Identification Card which they used to register as members of the group ranch.

38. Unfortunately, in this present Application, the 1st Respondent did not present any certified Register of the members of Moyoi Group Ranch as provided under Section 17 of the Land (Group Representatives) Act, Cap 287 to establish the actual number of members in the said Group Ranch.

39. In addition to the above, the 1st Respondent’s List of the members belonging to Moyoi Group Ranch did not disclose the Membership numbers of the persons who attended the said meeting on 14th November 2022.

40. It is important and significate that when a meeting of a Group Ranch including Moyoi Group Ranch is convened, the participants should be persons who are bona-fide and legitimate members of the said Group Ranch.

41. This omission in the Honourable Court’s considered view is fundamental to the legitimacy of the people who were present in the meeting of 14th November 2022.

42. In the absence of their Registration number as members of Moyoi Group Ranch, this Honourable Court would be doing a great injustice to approve the said Minutes and/or Resolutions while the legitimacy of the persons who attended the meeting of 14th November 2022 can not be verified and/or confirmed.

43. Fourthly, the Minutes produced by the 1st Respondent reflecting the deliberations of the meeting dated 14th November 2022 are signed by the Assistant Chief and another person whose name is not provided at the point of the signature.

44. The exercise of the Assistant Chief signing the Minutes of a Group Ranch meeting is to say the least, an abuse of the powers bestowed on such a government officer.

45. A group ranch is not a government entity but a private body created under the Land (Group Representatives) Act, Cap 287.

46. The provisions of the Land (Representatives) Act do not have any provision for the Assistant Chief and/or any other person who is not a recognised Group Representative to prepare, sign and/or present any purported minutes on behalf of the members of a Group Ranch.

47. In other words, the minutes of the meeting done on the 14th of November 2022 cannot pass the test of legitimacy on the execution part on behalf of Moyoi Group Ranch as alleged by the 1st Respondent.

48. In conclusion therefore, this Honourable Court is of the considered that the meeting held on the 14th of November 2022 was illegal and unlawful and could not produce any legitimate Resolutions capable of changing and/or altering the registration of the 1st to 3rd Applicants as the legitimate office bearers of the 4th Applicant herein.

Issue No. 2 - Are The Applicants Entitled To The Prayers Sought In The Present Application? 49. The Honourable Court having made a finding that the meeting and/or resolutions of the Meeting dated 14th November 2022 were illegal and unlawful, it is clear that the removal of the 1st to 3rd Applicants as the bona-fide officials of the 4th Applicant by the 1st Respondent and the 2nd Respondent is illegitimate and unlawful and the Applicants are entitled to the prayers sought in the present Application.

Issue No. 3 - Who Bears The Cost Of The Present Application? 50. The simple rule regarding costs in litigation is that costs follow the events.

51. In the present Application, the 1st Respondent has been found at fault and therefore will bear the costs of the present Application.

ConclusionIn conclusion therefore, this Honourable Court hereby makes the following Orders in regards to the Notice Of Motion Application dated 21st November 2022;-a.The 1st & 2nd Respondents be and are hereby restrained from removing or purporting to remove the 1st to 3rd applicants as officials of the 4th Applicant and/or changing or interfering in any manner whatsoever with the current membership and management of the 4th applicant.b.The 1st Respondent and any other party or official purporting to have authority other than the 1st to 3rd applicants be and is hereby restrained from transacting any business related to the leased over the Moyoi Group Ranch or the affairs of the 4th applicant.c.The records of the Social Development Officer - Transmara West/South Sub-Counties removing the names of the 1st to 3rd applicants as the bonafide and legitimate office bearers of the 4th applicant be cancelled and reinstated to the position they were before the meeting of 14th November 2022. d.Costs of this application be borne by the 1st Respondent.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON 3RD OCTOBER 2023. EMMANUEL. M. WASHEJUDGEIn The Presence Of :Court Assistant: Mr.ngeno/mr. BrianAdvocates For The Applicants: Mr. Marete (N/A)Advocates For The Respondent: M/s Bosibori