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ELCPartially Allowednot stated in excerpt· [2020] KEELC 2580 (KLR)

Edward Karanja v Koisani Ole Kawuonko [2020] KEELC 2580 (KLR)

Environment and Land Court
7 May 2020
COCHRISTINE OCHIENG
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Appellant's Notice of Motion dated 4th August 2015, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The appeal, formerly before the High Court at Machakos, had been dismissed for want of prosecution on 16th/17th July 2015 by Justice Nyamweya pursuant to a Notice to Show Cause which the Appellant said was never served. The Applicant sought a temporary injunction over LR Kajiado/Kaputiei North/2500 and 2501, reinstatement of the appeal, and reinstatement of interim injunction orders granted by Justice Isaac Lenaola on 12th May 2009. The Respondent opposed, contending non-disclosure, laches, and that the suit property had been subdivided and transferred to third parties who were not parties to the suit, so the orders were overtaken by events. The court framed two issues: reinstatement of the appeal, and reinstatement of the Lenaola orders. Applying Ivita v Kyumbu and Allan Otieno Osula, and noting there was no affidavit of service of the Notice to Show Cause, that submissions had been filed and the delay was due to the absence of an ELC Judge in Machakos, the court held the appeal was prematurely dismissed and reinstated it, invoking the Article 50 right to be heard. However, applying the Nguruman principles via Thomas Mumo Mangey, the court refused reinstatement of the injunctions, holding the claim overtaken by events since the property was held by third parties not before the court and damages would be adequate. Only prayer (c) was allowed; the Appellant was directed to set the appeal down within 90 days; costs were awarded to the Respondent.

Key legal issues

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01

Reinstatement of appeal dismissed for want of prosecution without service of the Notice to Show Cause

Holding

The appeal was reinstated; the dismissal was premature and the appellant not to blame for the delay.

Reasoning

The court record contained no affidavit of service of the Notice to Show Cause. The appellant had filed submissions and obtained a mention date; the delay was attributable to the absence of an ELC Judge in Machakos, per Justice Mutende's directions. The application was filed within a month of dismissal, satisfying the test in Ivita v Kyumbu that justice could be done despite the delay.

p. 3
02

Reinstatement of expired injunction orders over property transferred to third parties

Holding

Refused; the orders were overtaken by events and no prima facie case was established.

Reasoning

Applying Nguruman principles as restated in Thomas Mumo Mangey, the applicant failed to establish a prima facie case since the suit property was owned by third parties who were not parties to the suit. Damages would adequately compensate any injury, so no injunction should issue and the Lenaola orders could not be revived.

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Legal principles established

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  • The dismissal of an appeal for want of prosecution where the delay is excusable and no prejudice is shown may be set aside; the right to be heard under Article 50 favours reinstatement.
  • Interlocutory injunctions require a prima facie case, irreparable injury and balance of convenience; where damages are adequate, no injunction should issue.

Court orders

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  1. 1.Allowed prayer no. (c) only of the application dated 4th August 2015, reinstating the Appeal
  2. 2.Directed the Appellant to set the Appeal down for hearing within 90 days from the date of the order
  3. 3.Costs of the Application awarded to the Respondent
On appeal from
not stated (Appeal formerly before the High Court, Machakos)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Edward Karanja v Koisani Ole Kawuonko [2020] KEELC 2580 (KLR)", Case Analysis (2020). not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2580/eng@2020-05-07

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