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ELCDismissedNot stated in the judgment· [2017] KEELC 295 (KLR)

Cape to Cairo Logistics Limited v Government of Makueni County [2017] KEELC 295 (KLR)

Environment and Land Court
21 November 2017
CMC. G. MBOGO
899 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a county's attempt to throw out a harassment suit, confirming businesses can get interim injunctions to protect their operations.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Mbogo CG, J) determined the defendant's notice of preliminary objection dated 4th May, 2015, taken on three grounds: that the application and plaint were frivolous, defective and an abuse of process; that they offended section 16 of the Government Proceedings Act, Cap 40; and that they ought to be struck out. After a procedural history involving a transfer of the file to the Environment and Land Court, Nairobi, the respondent argued the objection satisfied the Mukisa Biscuits criteria and relied on Articles 1(4), 6(2) and 189(1) of the Constitution to contend that a county government is a government for purposes of the Government Proceedings Act, citing the Kilimanjaro Safari Club and Samuel Kerosi Ondieki decisions, and further that interim injunctive relief could not be granted absent a permanent injunction prayer in the plaint. The court accepted contested facts required trial, held the plaint sought declaratory relief under proviso (i) of section 16(1) of the Government Proceedings Act, and reasoned that the plaintiff was entitled to seek an interlocutory injunction under Order 40 rule 2(1) of the Civil Procedure Rules to restrain the alleged unlawful harassment and impounding of his machines and vehicles pending trial. The preliminary objection was dismissed with each party bearing its own costs; the plaintiff filed no submissions on the objection.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits criteria and warranted striking out the plaint and application

Holding

The preliminary objection failed because contested facts requiring trial existed and the suit disclosed a properly brought claim for declaratory and injunctive relief

Reasoning

The court noted that the facts pleaded by the plaintiff were denied by the respondent and would have to be ascertained at trial. It associated itself with the Kilimanjaro and Kerosi authorities, but found the plaint sought declaratory relief under proviso (i) of section 16(1) of the Government Proceedings Act. Given allegations of unlawful harassment and impounding of machines and vehicles, an interlocutory injunction under Order 40 rule 2(1) was appropriate, so neither the motion nor the suit was defective.

p. 2

Legal principles established

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  • A plaintiff facing ongoing harassment and interference with economic activity may properly seek an interlocutory injunction pending trial; such a suit is not defective for lack of a permanent injunction prayer in the plaint

Court orders

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  1. 1.The preliminary objection dated 4th May, 2015 is dismissed
  2. 2.Each party herein shall bear its own costs

Authorities

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Legislation

  • Government Proceedings Actsection 16; proviso (i) of section 16(1)
  • Constitution of Kenya, 2010Articles 1(4), 6(2) and 189(1)
  • Civil Procedure RulesOrder 40 rule 2(1)

Cases cited (3)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors
    [1969] EA 696
  • Kilimanjaro Safari Club Limited Vs Governor Kajiado County in place County Council of Kajiado
    [2014] eKLR
  • Samuel Kerosi Ondieki & Company Advocates Vs Narok County Government
    [2015] EKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the plaint and interlocutory application

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, "Cape to Cairo Logistics Limited v Government of Makueni County [2017] KEELC 295 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/295/eng@2017-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.