Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 10 of 2019· [2019] KEELC 393 (KLR)

John Ndungu Mwaura & 20 others v Municipal Council of Nakuru [2019] KEELC 393 (KLR)

Environment and Land Court
18 December 2019
DOD. O. Ohungo
1,086 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 Nakuru court refused to send police to enforce a 22-year-old land injunction, ruling civil orders must be enforced through civil procedure, not police.

What this practically means

#

Executive summary

#
This matter originated as SPMCC No. 1341 of 1994 (Nakuru) before the subordinate court, which on 29th January 1997 granted the plaintiffs an interlocutory injunction restraining the defendant from interfering with plots on L.R. No. 6273 comprising Kalenjin Enterprises (Barut Farm 113). The suit remained in the subordinate court for about 23 years before being transferred to the Environment and Land Court, Nakuru, as ELC No. 10 of 2019. The plaintiffs then filed a Notice of Motion dated 11th October 2019 seeking orders that the OCPD Nakuru Central Police Station provide security and ensure compliance with the 1997 order, alleging that the defendant had begun subdividing the suit property in contempt of that order. The defendant, through Stephen Waweru Njagi, responded that Kalenjin Enterprises had surrendered 56 acres to the defunct Municipal Council of Nakuru for sewerage works, now managed by NAWASSCO, that no land bearing L.R. No. 6273 existed, and that it was the plaintiffs' own members who were subdividing and cultivating the land. Justice D. O. Ohungo declined to grant the orders sought. He found it difficult to ascertain the scope of the 1997 order or any non-compliance 22 years later, noted the applicants had not contested NAWASSCO's management of the property nor demonstrated service of the order on it, and held, following Kamau Mucuha v Ripples Ltd, that police should not be enlisted in purely civil matters where the Civil Procedure Act and Rules provide adequate enforcement mechanisms. The application was dismissed with costs to the defendant, and the plaintiffs were directed to prosecute the main suit, scheduled for hearing on 3rd February 2020.

Key legal issues

#
01

Enforcement of a 1997 interlocutory injunction through police assistance

Holding

Refused; the court could not ascertain the scope of the order or the alleged non-compliance over 22 years later, and the applicants failed to demonstrate service on NAWASSCO which now manages the property

Reasoning

The court found that while court orders must be obeyed, it was difficult after 22 years to ascertain the scope of the order and any disobedience of it. The defendant showed the property was under the management of NAWASSCO, a corporate entity, which the applicants did not contest and on which the order was never served. Police assistance in civil matters was also held improper absent special circumstances.

p. 2
02

Use of police in civil proceedings

Holding

Police assistance should not be sought routinely in purely civil matters; enforcement of injunctions is provided for under the Civil Procedure Act and Rules, particularly Order 21 rule 28 of the Civil Procedure Rules

Reasoning

The court, citing Kamau Mucuha v Ripples Ltd (Hancox CJ and Kwach JA), held that it is unlawful to use police to effect private evictions or reinstatements in civil actions, and that specific provision exists for enforcement of injunctions. Only proven special circumstances, such as threats to life or property not securable through ordinary procedures, justify police involvement.

p. 2
03

Inordinate delay and prosecution of the main suit

Holding

The plaintiffs were directed to prosecute the main suit, scheduled for hearing on 3rd February 2020, as it was unacceptable for it to remain pending 25 years after filing

Reasoning

The court observed that the 1997 orders were made pending the hearing and disposal of the main suit, and that allowing a suit to remain pending for 25 years was unacceptable. The proper course was for the plaintiffs to prosecute the suit to bring the matter to an end rather than seek enforcement of an aged interlocutory order.

p. 2

Legal principles established

#
  • Police assistance should not be routinely enlisted in purely civil matters; injunctive orders have ample enforcement provisions under the Civil Procedure Act and Rules, and police should only assist upon proven special circumstances such as threat to life or property
  • It is unlawful to utilise the police in a civil action to effect or aid private evictions or reinstatements

Court orders

#
  1. 1.Notice of Motion dated 11th October 2019 dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

#

Legislation

  • Civil Procedure Actnull
  • Civil Procedure RulesOrder 21 rule 28

Cases cited (1)

  • Kamau Mucuha v Ripples Ltd
    [1993] eKLR
On appeal from
Subordinate court (Nakuru)
SPMCC No. 1341 of 1994 (Nakuru)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court, matter transferred from the High Court (Miscellaneous Application No. 316 of 2018) which had ordered transfer of the subordinate court suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Ndungu Mwaura & 20 others v Municipal Council of Nakuru [2019] KEELC 393 (KLR)", Case Analysis (2019). ELC No. 10 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/393/eng@2019-12-18

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