Mary Makoffu & another v Canuck Holdings Limited & 4 others [2019] KEELC 2376 (KLR)
The bottom line
#A Kenyan land buyer lost an urgent bid to undo a court-ordered sale because the Land Court cannot review High Court orders.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review High Court orders
The ELC lacks jurisdiction to stay, set aside or review orders made by the High Court in HCCC 524 of 2009; the proper forum is the High Court itself, or the suit should be transferred first
Relying on Republic v Karisa Chengo, the court held that the High Court and ELC are distinct third-tier superior courts of equal status with distinct jurisdiction. The ELC exercises no supervisory or appellate power over the High Court, so review or stay of the impugned consent order must be pursued in the court that issued it, or after a formal transfer of that suit to the ELC.
Mandatory injunction
Mandatory injunctive relief was refused because the consent order sanctioning the sale and the vesting order in favour of the 3rd defendant subsist and have not been set aside
Applying Locabi International Finance Limited v Agro-Export, the court required special circumstances and a clear case with a high sense of assurance. Since the consent order and the vesting order issued by Sewe J remained in force, the plaintiffs could not meet the higher threshold for mandatory interlocutory relief.
Prohibitory injunction
The Giella v Cassman Brown criteria were not satisfied: no prima facie case against the registered purchaser, and damages would adequately compensate the plaintiffs
The auction occurred pursuant to the impugned consent order and the property was vested in the 3rd defendant under a subsisting court order, so the plaintiffs lacked a prima facie case against the current registered proprietor. Further, the 1st plaintiff's loss was quantifiable and the 2nd plaintiff had quantified his eviction loss, making damages an adequate remedy.
Legal principles established
#- The Environment and Land Court, the High Court and the Employment and Labour Relations Court are distinct superior courts of equal status, and the ELC exercises neither review nor appellate jurisdiction over High Court orders; review must be sought in the court that made the order
- A mandatory injunction will not be granted on an interlocutory application absent special circumstances and a clear case, on a higher standard than for a prohibitory injunction
Court orders
#- 1.The plaintiffs' notice of motion dated 15/5/2018 is declined
- 2.Costs of the application are in the cause and will await disposal of the main suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Makoffu & another v Canuck Holdings Limited & 4 others [2019] KEELC 2376 (KLR)", Case Analysis (2019). Nairobi ELC Civil Suit (Notice of Motion dated 15/5/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2376/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.