Akiyda Two Thousand Limited v County Government of Kisumu [2021] KEELC 72 (KLR)
The bottom line
#The Environment and Land Court dismissed a county government's attempt to overturn orders it had ignored, ruling you cannot seek review after disobeying a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether a mandatory injunction may issue on an interlocutory application
The court affirmed that the mandatory injunction issued on 24th March 2021 was properly granted because the case was clear - the Defendant's agents razed the Plaintiff's fence with a bulldozer.
The court invoked Vol. 24 Halsbury's Laws of England and the Canadian Pacific Railway and Locabail authorities, holding that a mandatory injunction is available interlocutorily where the act done is simple, summary and easily remediable, or where the defendant steals a march. It found the destruction of the fence was a clear case warranting the order compelling reconstruction.
Whether the ex parte orders of 24th March 2021 should be reviewed, varied or set aside
The Defendant failed to establish any ground for review under Order 45, and the application was dismissed with costs.
The court found the orders were served on 12th April 2021 and the Defendant disobeyed them by converting the suit property into an open-air market. The application was filed only after the contempt proceedings were instituted, showing it was prompted by the contempt application rather than any error or new matter. The provisions of Order 45 were therefore not satisfied.
Whether the Defendant's non-attendance on 24th March 2021 constituted sufficient cause
Non-attendance was not accepted as a basis to set aside orders which had been served and defied.
Although the Defendant explained inadvertent mistake and lack of communication, and cited Shah v Mbogo and related authorities on excusable mistake, the court noted the orders were extracted and served on 12th April 2021 and the Defendant ignored them, continuing to occupy the suit property. The court was not persuaded that setting aside would serve the interests of justice.
Legal principles established
#- A mandatory injunction can be granted on an interlocutory application, but in the absence of special circumstances it will not normally be granted; it will be granted where the case is clear, the act is simple and easily remediable, or the defendant attempted to steal a march on the plaintiff.
- An application for review under Order 45 must be made without unreasonable delay and on the grounds of discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason.
Court orders
#- 1.The Notice of Motion application dated 20th September 2021 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Inherent and review jurisdiction under Section 63(E) and Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akiyda Two Thousand Limited v County Government of Kisumu [2021] KEELC 72 (KLR)", Case Analysis (2021). Notice of Motion Application dated 20th September 2021 (arising from a suit with Notice of Motion dated 9th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/72/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.