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ELCDismissedNot stated in judgment (Nakuru ELC)· [2018] KEELC 2966 (KLR)

Board of Trustees, Pentecostal Evangelistic Fellowship of Africa v County Government of Nakuru & 15 others [2018] KEELC 2966 (KLR)

Environment and Land Court
11 May 2018
DOD. O. Ohungo
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused a religious organization's bid to evict traders blocking its access, ruling mandatory injunctions need strong proof and contempt requires proper service.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) dealt with two applications by the plaintiff, a religious organization claiming ownership of Nakuru Municipality Block 3/130, where it had constructed stalls opening onto the main road. The first application, dated 26th July 2017, sought a mandatory injunction restraining the 2nd to 16th defendants from obstructing the plaintiff's access way or displaying merchandise outside the suit property. The second, dated 12th October 2017, sought to cite the 2nd defendant, John Karanja Ndegwa, for contempt of the court's restraining orders of 13th April 2017 and to have him punished. The 1st defendant opposed the injunction as premature at the interlocutory stage, while the 2nd to 16th defendants denied blocking access, asserting they had traded on the road reserve since 1987 with the 1st defendant's sanction. Applying the Court of Appeal's principles in Lucy Wangui Gachara v Minudi Okemba Lore, the court held that a mandatory injunction requires special circumstances or the clearest of cases, and found the plaintiff had proved neither a prima facie case nor exclusive rights over the disputed area, its supporting affidavit bearing no annexures. On contempt, the court found no proof of service of the order on the 2nd defendant, who was not a party when the order was made and was not shown to be the 1st defendant's agent or servant. Both applications were dismissed with costs.

Key legal issues

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01

Whether a mandatory injunction should issue at the interlocutory stage against the 2nd to 16th defendants

Holding

The application fails; the plaintiff established neither a prima facie case nor special circumstances or a clearest of case justifying a mandatory injunction.

Reasoning

The court applied the principles in Lucy Wangui Gachara v Minudi Okemba Lore, noting that mandatory injunctions at interlocutory stage summarily determine the dispute and are granted only in special circumstances. The supporting affidavit had no annexures, and the plaintiff failed to show how the defendants' activities blocked its access or that it had exclusive rights to the road reserve area where the defendants traded.

p. 3
02

Whether the 2nd defendant was in contempt of the orders of 13th April 2017

Holding

The contempt application fails; the order was not proved to have been served on or known to the 2nd defendant, and it did not bind him.

Reasoning

The orders alleged to have been violated were made on 13th April 2017, before the 2nd defendant was joined to the suit and were directed at the then sole (1st) defendant and its agents or servants. The plaintiff provided no affidavit of service, and did not demonstrate that the 2nd defendant was an agent or servant of the 1st defendant at the material time.

p. 3

Legal principles established

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  • A mandatory injunction at the interlocutory stage should only be granted in special circumstances or in the clearest of cases, since it amounts to a summary determination of the dispute
  • A party cannot be punished for contempt of an order that was not directed at him, or where service of the order is not proved

Court orders

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  1. 1.Notice of Motion dated 26th July 2017 is dismissed with costs to the defendants
  2. 2.Notice of Motion dated 12th October 2017 is dismissed with costs to the 2nd defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property (Nakuru Municipality Block 3/130); not expressly cited in the ruling

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, "Board of Trustees, Pentecostal Evangelistic Fellowship of Africa v County Government of Nakuru & 15 others [2018] KEELC 2966 (KLR)", Case Analysis (2018). Not stated in judgment (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2966/eng@2018-05-11

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