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ELCDismissedNot stated in the judgment (injunctive motion dated 20.1.2015 in the main suit)· [2017] KEELC 3640 (KLR)

Two Thirds Investment Ltd & 10 others v Katana Said Kalama & 3 others [2017] KEELC 3640 (KLR)

Environment and Land Court (Mombasa) - court not expressly named in the extract; judge A. Omollo, J
7 February 2017
AOA. Omollo
960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court dismissed land defendants' bid to stay and reinterpret an injunction, ruling they should have appealed, sought review, or filed contempt proceedings instead.

What this practically means

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Executive summary

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The defendants moved the Court under sections 1A, 2A and 3B of the Civil Procedure Act and Order 22 rule 22 of the Civil Procedure Rules seeking a temporary stay of execution of the ruling delivered on 6th July 2016, an interpretation of that ruling, and costs. Supported by the affidavit of Katana Said Kalama, they contended that the orders had been misinterpreted since no express demolition or evacuation orders had been granted, that they were being harassed, and in the alternative sought a status quo ante order preserving their occupation pending trial. The plaintiffs, through the replying affidavit of J. K Wanyoike, opposed the application, explaining that a joint survey had identified the plots occupied by the defendants; that the 6th July 2016 order merely restrained the defendants and their proxies from encroaching, trespassing, constructing, fencing, cultivating or grazing on the listed plots; that no appeal had been filed; and that the plaintiffs had not interfered with the defendants' quiet possession of the 30 plots. The Court held that the ruling of 6th July 2016 simply allowed prayer 3 of the motion dated 20.1.2015 - an injunction over the listed plots - subject to the exception of the 30 plots occupied by the defendants per the joint survey report, and that no demolition, evacuation or status quo order had been granted. The proper remedies for a dissatisfied party were appeal or review, and for any alleged breach, contempt proceedings, neither of which had been pursued. The application was dismissed with costs to the Plaintiff/Respondents.

Key legal issues

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01

Whether the ruling of 6th July 2016 required interpretation

Holding

The ruling was clear and unambiguous; it allowed prayer 3 of the motion dated 20.1.2015 save that the injunction did not apply to the 30 plots occupied by the defendants as per the joint survey report.

Reasoning

The Court compared the terms of prayer 3 of the motion with the ruling of 6th July 2016 and found the ruling simply granted that prayer with the qualification regarding the plots occupied by the defendants. No demolition or evacuation order had been made, and no status quo order had been granted, so nothing required clarification.

p. 3
02

Whether stay of execution of the ruling should issue

Holding

Stay was refused; the proper avenues were appeal or review, and contempt proceedings for any alleged breach.

Reasoning

The applicants had not filed an appeal nor applied for review despite being unhappy with the ruling, and despite alleging demolition of the 1st defendant's structures they had not commenced contempt proceedings. The Court therefore found the application for stay misconceived.

p. 3

Legal principles established

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  • A party dissatisfied with an interlocutory order may appeal or apply for review; if the order is breached, the remedy is contempt proceedings - not an application for stay and interpretation.

Court orders

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  1. 1.The defendants' application for stay and interpretation of the ruling of 6th July 2016 was dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 2A, 3B
  • Civil Procedure RulesOrder 22 rule 22
Jurisdiction invoked
Sections 1A, 2A and 3B of the Civil Procedure Act and Order 22 rule 22 of the Civil Procedure Rules

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, "Two Thirds Investment Ltd & 10 others v Katana Said Kalama & 3 others [2017] KEELC 3640 (KLR)", Case Analysis (2017). Not stated in the judgment (injunctive motion dated 20.1.2015 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3640/eng@2017-02-07

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