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ELCDismissedNairobi ELC Case (application dated 11/11/2019 filed with plaint dated 11/11/2019)· [2021] KEELC 2932 (KLR)

Salima Enterprises Limited v Nairobi City County [2021] KEELC 2932 (KLR)

Environment and Land Court
26 May 2021
1,312 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to block Westlands Market's opening, ruling the landowner must enforce its existing compensation decree, not file a fresh suit.

What this practically means

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Executive summary

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The Plaintiff, registered owner of land reference number 1870/IX/170 in Westlands, Nairobi, applied by notice dated 11/11/2019 for orders restraining Nairobi City County from opening the completed Westlands Market on the suit property pending payment of compensation, with police assistance in enforcement. The plaintiff had earlier obtained judgment in Nairobi ELC No. 1144 of 2013 (Gitumbi J, 4/7/2014) awarding Kshs. 325,000,000 as compensation plus mesne profits, a mandamus order by Odunga J in Judicial Review No. 309 of 2015 (7/6/2016), and a consent recorded on 9/1/2018 adopting Kshs. 600,000,000 payable within 21 days, with execution by warrants of arrest in default. Warrants of arrest were issued against county officials but allegedly not executed, and stay of execution was refused by Mativo J on 25/6/2019. The Defendant filed only a memorandum of appearance and did not respond; mediation failed. The court found the application was in substance an attempt to enforce an existing decree through a fresh suit, which it held was an abuse of court process, the plaintiff's remedy being execution under the consent. It also noted the plaintiff had not quantified the balance due nor disclosed whether the warrant was executed, and held that closing a completed public market would not serve the public interest. The application dated 11/11/2019 was accordingly dismissed, delivered virtually at Nairobi on 26 May 2021, with no costs order recorded.

Key legal issues

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01

Whether a fresh suit can be maintained to enforce a subsisting decree

Holding

No - such a suit is an abuse of court process; the plaintiff must pursue execution under the decree and the terms of the consent recorded in the prior case

Reasoning

The plaintiff had already obtained judgment in ELC No. 1144 of 2013 and a mandamus order in Judicial Review No. 309 of 2015, followed by a consent adopting Kshs. 600,000,000 payable within 21 days with execution by warrants of arrest in default. The consent was never set aside. Filing a new suit merely to stop the market opening amounted to enforcing the same decree through a duplicative suit, which the court held was abusive.

p. 2
02

Whether the public interest supports closing a completed public market pending payment

Holding

The court declined the injunction, holding that stopping occupation of the public market would not serve the public interest

Reasoning

The market was complete and ready for occupation; the plaintiff did not disclose whether the warrant of arrest had been executed or quantify the balance due. Given the decree remained unenforced and the public would be affected, the court weighed public interest against the plaintiff's private claim and declined relief.

p. 2

Legal principles established

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  • A party cannot enforce a decree by filing a fresh suit purely for execution purposes; the proper recourse is execution under the existing decree

Court orders

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  1. 1.The court declines to grant the orders sought by the Plaintiff in the application dated 11/11/2019
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited in judgment)

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, "Salima Enterprises Limited v Nairobi City County [2021] KEELC 2932 (KLR)", Case Analysis (2021). Nairobi ELC Case (application dated 11/11/2019 filed with plaint dated 11/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2932/eng@2021-05-26

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