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ELCDismissedMiscellaneous Application dated 19th January 2017 (arising from Environment & Land Case No. 73 of 2015, Malindi)· [2017] KEELC 2480 (KLR)

Masha Ngao & 6 others v Okomboli Ong’ong’a [2017] KEELC 2480 (KLR)

Environment and Land Court
13 July 2017
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect land occupants who ignored earlier orders against them, saying parties seeking the court's help must first obey the court's own orders.

What this practically means

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Executive summary

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The Applicants, led by Masha Ngao, moved the court by an application dated 19th January 2017 seeking a temporary injunction restraining the Respondent (the OCS Kilifi Police Station) and others from harassing and interfering with their stay and occupation of Plot No. 20252/13, Title No. CR 30853, Kilifi Town, pending the hearing of Malindi ELC No. 73 of 2015, in which they challenge the Respondent's title. They complained that on 13th January 2017 the Respondent, with police and hired goons, invaded the property and demolished houses, and that the 1st Applicant was arrested and threatened with eviction despite no judgment, decree, or demolition orders existing in the main suit. The Respondent opposed, pointing out that on 19th February 2016 Angote J had granted injunction orders restraining the Applicants from trespassing on or interfering with his quiet possession of the suit property, enforceable by the OCPD Kilifi, and that those orders had not been set aside or stayed. The Applicants' appeal against those orders, Civil Appeal No. 35 of 2016, was pending before the Court of Appeal. The court held that granting the Applicants a counter-injunction over the same land against subsisting orders would set a dangerous precedent, and that, having failed to comply with those orders, they could not invoke equity, their hands being tainted under the clean-hands maxim. The court discharged the ex-parte interim orders granted by Omollo J on 19th January 2017 and dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether a party under subsisting injunction orders may obtain a counter-injunction to restrain the other party from enforcing those orders

Holding

No; the court declined to grant the counter-injunction because the orders of 19th February 2016 had neither been set aside nor stayed, and granting the injunction sought would set a dangerous precedent

Reasoning

The court noted that on 19th February 2016 Angote J had restrained the Applicants from interfering with the Respondent's possession of the suit property, with the OCPD Kilifi to enforce compliance. Those orders were still in force. The Applicants, instead of complying or seeking stay or setting aside, sought a counter-injunction over the same land. The court held that allowing such a course would set a dangerous precedent and refused it.

p. 3
02

Whether the Applicants, in breach of subsisting orders, qualified for equitable relief

Holding

No; the maxim of clean hands disentitled them

Reasoning

The Applicants had refused or neglected to comply with the orders of 19th February 2016 and yet approached the court seeking an equitable remedy. Applying the maxim that he who comes to equity must come with clean hands, the court found their hands heavily tainted and refused to aid them with the discretionary injunction sought.

p. 3

Legal principles established

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  • A party cannot seek a counter-injunction against orders of the same court that remain in force, not set aside or stayed
  • A party seeking an equitable remedy must come to equity with clean hands; non-compliance with subsisting court orders disentitles the party from equitable relief

Court orders

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  1. 1.Discharge of the temporary orders granted ex-parte by the Honourable Omollo J in Mombasa on 19th January 2017
  2. 2.Dismissal of the application dated 19th January 2017 with costs to the Respondent
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property (Plot No. 20252/13 Title No. CR 30853, Kilifi); matter transferred from the High Court in Mombasa by Hon. Justice Anne Omollo on 3rd February 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Masha Ngao & 6 others v Okomboli Ong’ong’a [2017] KEELC 2480 (KLR)", Case Analysis (2017). Miscellaneous Application dated 19th January 2017 (arising from Environment & Land Case No. 73 of 2015, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2480/eng@2017-07-13

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