Cornel Opiyo Osano & 12 others v Synohydro Corporation Limited & 3 others (being sued as officials of Kikako Walfare Association) [2016] KEELC 971 (KLR)
The bottom line
#A Kenyan court refused to punish Synohydro for contempt because a surveyor showed the excavation happened about 140 metres away from the land protected by the court order.
What this practically means
#Executive summary
#Key legal issues
#Whether contempt of the injunction order of 23rd June 2014 was established
The contempt application failed because there was a live dispute as to whether the excavation occurred on the Applicants' land
The order was served on 25th June 2014 and excavation continued on 2nd and 27th August 2014, which the Respondent did not dispute. However, the Respondent showed it was excavating land leased from the Third Party, and an unchallenged surveyor's report placed L.R. No.18133 about 140 metres from the excavation area. This created doubt as to whether the excavation breached the order restraining interference with the Applicants' parcels.
Status of the injunction application dated 26th May 2014
That application had already been granted on 23rd June 2014 and could not be re-listed; the parties' submissions on it were misplaced
The court observed that the motion dated 26th May 2014 was allowed on 23rd June 2014 after service was proved, and those orders were never set aside, reviewed or appealed. Listing the same application for hearing again was a mistake carried forward, and written submissions filed on it by both counsel were therefore misplaced.
Whether unchallenged affidavit evidence of the Respondent should be accepted
The Respondent's deposition, supported by a licensed surveyor's report, stood unchallenged and weighed against a finding of contempt
The Respondent's account that it excavated land leased from the Third Party, corroborated by a surveyor's report and sketch map showing L.R. No.18133 was about 140 metres from the excavation area marked 'A', was not challenged by the Applicants, and the court accepted it in determining that contempt was not proved.
Legal principles established
#- Once an interlocutory application has been allowed, it cannot be listed for hearing again unless the orders granted are first vacated by review, setting aside or appeal
Court orders
#- 1.The notice of motion dated 13th August 2014 is dismissed with costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit parcels L.R. No.18133/3 to 18133/98
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cornel Opiyo Osano & 12 others v Synohydro Corporation Limited & 3 others (being sued as officials of Kikako Walfare Association) [2016] KEELC 971 (KLR)", Case Analysis (2016). Notice of motion dated 13th August 2014 in suit commenced by plaint dated 26th May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/971/eng@2016-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.