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ELCDismissedNotice of motion dated 13th August 2014 in suit commenced by plaint dated 26th May 2014· [2016] KEELC 971 (KLR)

Cornel Opiyo Osano & 12 others v Synohydro Corporation Limited & 3 others (being sued as officials of Kikako Walfare Association) [2016] KEELC 971 (KLR)

Environment and Land Court
19 April 2016
1,254 words in judgment
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The bottom line

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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

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Executive summary

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The 13 Applicants sued Synohydro Corporation Limited by plaint dated 26th May 2014 seeking a permanent injunction and restoration order over parcels L.R. No.18133/3 to 18133/98, and contemporaneously obtained a temporary injunction on 23rd June 2014 after unopposed inter partes hearing. The order was served on the Respondent on 25th June 2014. The Applicants then filed the notice of motion dated 13th August 2014 seeking enforcement of the injunction, citing the Defendant for contempt, attachment of its property or committal of its Managing Director, and an order commanding the Officer in Charge of Kondele Police Station to ensure compliance. The Respondent, in the affidavit of Jianfei Wang, explained that it had leased land from Kikako Welfare Association (joined as Third Party) and had been excavating murram there since March 2014, and relied on a licensed surveyor's report and sketch map showing the excavation site was about 140 metres from L.R. No.18133. The court found the order was served and that excavation continued on 2nd and 27th August 2014, but accepted the unchallenged surveyor's evidence, holding it doubtful whether the excavation breached the order. Noting that prayers (a) and (b) were spent and that the earlier application could not be re-heard without vacating its orders, the court dismissed the contempt application with costs in the cause on 19th April 2016.

Key legal issues

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01

Whether contempt of the injunction order of 23rd June 2014 was established

Holding

The contempt application failed because there was a live dispute as to whether the excavation occurred on the Applicants' land

Reasoning

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.

p. 3
02

Status of the injunction application dated 26th May 2014

Holding

That application had already been granted on 23rd June 2014 and could not be re-listed; the parties' submissions on it were misplaced

Reasoning

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.

p. 2
03

Whether unchallenged affidavit evidence of the Respondent should be accepted

Holding

The Respondent's deposition, supported by a licensed surveyor's report, stood unchallenged and weighed against a finding of contempt

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.