Hayer Bishan Singh & Sons Ltd & another v County Government of Kisumu & another [2020] KEELC 2334 (KLR)
The bottom line
#The Kisumu Environment and Land Court dismissed the landowners' injunction and contempt applications because they couldn't prove who actually demolished their property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case for a temporary injunction
No - the identity of the persons carrying out the alleged activities was doubtful given the parallel suit against Kenya Railways Corporation over the same parcels and identical pleaded losses
The court noted that the Plaintiffs had sued Kenya Railways Corporation in ELC Petition No. 18 of 2019 over the same parcels, alleging identical acts of demolition and vandalism and pleading the exact same figure of losses. The affidavit evidence did not identify who was carrying out the activities, so no prima facie case against these Defendants was shown.
Whether the Defendants' officials were in contempt of the conservatory orders
No - the Plaintiffs could not prove that the Defendants, rather than Kenya Railways Corporation or Kenya Ports Authority, disobeyed the orders
Applying the test in Samuel M. N. Mweru, the Plaintiffs had to prove the terms of the order, knowledge, and breach. Since the evidence did not establish the identity of the persons carrying out activities on the parcels, breach by the Defendants' officials was not proved and the contempt application failed.
Material non-disclosure in seeking equitable relief
Raised by the Defendants - the Plaintiffs had not disclosed the existence of the parallel suit ELC Petition No. 18 of 2019 against Kenya Railways Corporation
The Defendants argued that injunctive relief demands full and frank disclosure and that pursuing parallel causes over the same subject matter risked conflicting decisions. The court treated the existence of the parallel suit with identical pleaded losses as casting serious doubt on the Plaintiffs' claim against these Defendants.
Legal principles established
#- To succeed in civil contempt, the applicant must prove the terms of the order, the respondent's knowledge of those terms, and failure to comply
- A prima facie case requires more than an arguable case - evidence must show infringement of a right and probability of success at trial
- The Giella criteria must be applied sequentially without leap-frogging
Court orders
#- 1.The application dated 3rd December 2019 is dismissed with costs
- 2.The application dated 11th December 2019 (contempt) is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayer Bishan Singh & Sons Ltd & another v County Government of Kisumu & another [2020] KEELC 2334 (KLR)", Case Analysis (2020). ELC Petition No. 18 of 2019 (OS) referenced; Applications dated 3rd December 2019 and 11th December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2334/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.