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ELCDismissedPetition (Chamber Summons application dated 24th September, 2019), Mombasa ELC· [2021] KEELC 2051 (KLR)

Colfax Holdings Limited v National Land Commission & another [2021] KEELC 2051 (KLR)

Environment and Land Court
19 July 2021
CYC.K. Yano
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to release SGR land compensation early, ruling final relief cannot be granted at an interim stage.

What this practically means

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Executive summary

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This was a ruling on the petitioner's Chamber Summons application dated 24th September 2019, seeking interlocutory relief in a petition concerning six parcels of land (MN/VI/29437/12, MN/VI/29473/11, MN/VI/29437/19, MN/VI/29437/20, MN/VI/29437/22 and MN/VI/29437/23) compulsorily acquired for construction of the Standard Gauge Railway. The applicant sought a declaration that the respondents' non-compensation was illegal, null and void as contrary to Articles 28, 40 and 47(2) of the Constitution, and an order releasing the earmarked compensation funds. Counsel for the applicant conceded the orders were final in nature but urged the court's inherent power and relied on multiple authorities. The 1st respondent opposed, contending that final relief could not issue at an interlocutory stage, that the matter was sub judice in Mombasa ELC No. 405 of 2017 where orders restrained compensation over the suit land, and that the petition was an abuse of process. Applying the Court of Appeal's decision in Olive Mwihaki Mugenda and the Indian authority Ashok Kumar Bajpai, the court held that final orders are granted at interlocutory stage only in exceptional circumstances, none of which were shown, and that granting the orders would create conflicting orders with ELC No. 405 of 2017. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Grant of final orders at interlocutory stage

Holding

Final relief cannot be granted at an interlocutory stage absent special circumstances; none were shown

Reasoning

The application sought the very prayers contained in the petition, which are final in nature. Following the Court of Appeal's adoption of the Indian authority in Ashok Kumar Bajpai, such relief requires exceptional circumstances and recorded reasons. The applicant admitted the orders were final but invoked the court's inherent power; the court held that mere interest of justice does not displace the rule.

p. 2
02

Sub judice / conflicting orders

Holding

The relief sought was substantially the subject of restraining orders in ELC No. 405 of 2017; granting it would create conflicting orders between courts

Reasoning

It was not disputed that in ELC No. 405 of 2017 the court had restrained the respondents from making any compensation over the suit land. Granting the applicant's prayers would result in two conflicting orders. The court also held this was not a clear case capable of summary determination.

p. 2

Legal principles established

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  • Interim relief amounting to final relief may only be granted in exceptional circumstances where the court is satisfied the petitioner is ultimately bound to succeed, and reasons must be recorded

Court orders

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  1. 1.The Notice of Motion dated 24th September, 2019 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 40 and 47(2)

Cases cited (10)

  • Isaiah Staito & 6 Others -v- County Government of Vihiga
    (2018) eKLR
  • Patrick Musimba -v- NLC & 5 Others
    Petition No. 613 of 2014
  • Shepherd Homes Ltd -v- Shandahu
    (1971) 1 Ch D 34
  • Nation Media Group & 2 Others -v- John Harun Mwau
    (2014) eKLR
  • Rep -v- Registrar of Societies Kenya & 2 Others Ex-Parte Moses Kirimi & 2 Others
    (2017) eKLR
  • Law Society of Kenya -v- The Attorney General and Another, JSC (Interested Party)
    (2020) eKLR
  • Barsogat Investment Ltd -v- County Government of Vihiga
  • Christopher Ndarathi Murungaru -v- Kenya Anti-Corruption Commission and Hon. Attorney General
    (2006) eKLR
  • Olive Mwihaki Mugenda & Another -v- Okiya Omtata Okoiti & 4 Others
    (2016) eKLR
  • Ashok Kumar Bajpai -v- Dr. (Smt) Ramjama Bajpai
    AIR 2004, ALL 107, 2004 (1) AWC 88
Jurisdiction invoked
Constitution of Kenya 2010 and all other enabling provisions of the law and the inherent jurisdiction of the court

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, "Colfax Holdings Limited v National Land Commission & another [2021] KEELC 2051 (KLR)", Case Analysis (2021). Petition (Chamber Summons application dated 24th September, 2019), Mombasa ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2051/eng@2021-07-19

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