Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Petition No. 6 of 2017· [2018] KEELC 927 (KLR)

Hannington Kyengo Munyao & 7 others v Benard Nguyo & 9 others [2018] KEELC 927 (KLR)

Environment and Land Court
26 October 2018
911 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a land order cannot be stretched to justify taking over a children's home, and blocked that takeover.

What this practically means

#

Executive summary

#
The Respondents/Applicants, led by the Bishop and Head of Africa Inland Church (AIC) Machakos, who is also a Trustee of the AIC Kenya Trustees Registered, moved the court by Notice of Motion dated 5th December, 2017 seeking review and/or setting aside of the Ruling and orders of 23rd November, 2017 in ELC Petition No. 6 of 2017, and injunctions restraining the Petitioners from interfering with the running of the AIC Kangundo Children's Home pending the Petition. It was deponed that the Home sits on parcels Kangundo/Muisuni/945 and 1009, is run by a third party, Kenya Kids Organization, and that the Petitioners had threatened to take over its operations, threatening the welfare of the children under its care. The 1st Petitioner opposed, arguing there was no new matter or mistake apparent on the face of the record, that the issues were res judicata an earlier application dated 14th March, 2017, and that Kenya Kids was not a party. The court restated the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules and found that a letter dated 30th November, 2017 showed the Petitioners intended, from January 2018, to take over the running of the Home - a purpose the order of 23rd November, 2017 never mandated, as it only restrained eviction and preserved use of the suit land. The court accordingly reviewed the orders, restraining the Petitioners from taking over or interfering with the running and management of the Home pending the Petition, and ordered each party to pay his/her costs.

Key legal issues

#
01

Grounds for review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

The Applicants demonstrated sufficient reason for review/clarification because the Petitioners sought to use the court's order to take over the running of the Children's Home, which the order never mandated

Reasoning

The court restated Order 45 Rule 1: review lies where there is new and important matter or evidence not available despite due diligence, a mistake or error apparent on the face of the record, or any other sufficient reason. The letter dated 30th November, 2017 showed the Petitioners intended to take over the running of the Home from January 2018, a purpose beyond the scope of the order of 23rd November, 2017, which only restrained eviction and preserved use of the suit land. This justified review and clarification of the orders.

p. 2
02

Protection of the AIC Kangundo Children's Home from interference pending the Petition

Holding

The Petitioners were restrained from taking over or interfering with the running and management of the Home pending hearing and determination of the Petition

Reasoning

The 1st Respondent deponed that the Home is run by a third party, Kenya Kids Organization, and that the Petitioners threatened to interfere with and take over its operations, which would adversely affect the lives of the children under its care. The letter of 30th November, 2017 confirmed the intention to start operating the Home from January 2018. The court therefore extended the injunctive relief to protect the Home's operations.

p. 2

Legal principles established

#
  • A court order cannot be used as a mandate to do more than it provides; an injunction restraining eviction and preserving use of land does not authorise a party to take over an institution situated on that land

Court orders

#
  1. 1.The orders of 23rd November, 2017 were reviewed by adding a restraint on the Petitioners from taking over or interfering with the running and management of AIC Kangundo Children's Home located on parcels Kangundo/Muisuni/945 and Kangundo/Muisuni/1009 pending the hearing and determination of the Petition
  2. 2.Each party to pay his/her costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (1)

  • High Court Petition Number 395 of 2012
Jurisdiction invoked
Inherent powers of the court; review under Order 45 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hannington Kyengo Munyao & 7 others v Benard Nguyo & 9 others [2018] KEELC 927 (KLR)", Case Analysis (2018). ELC Petition No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/927/eng@2018-10-26

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