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ELCAllowedNotice of Motion dated 22nd August 2019 (suit at Malindi Environment and Land Court)· [2021] KEELC 4608 (KLR)

Freedom Limited v County Government of Kilifi & another [2021] KEELC 4608 (KLR)

Environment and Land Court
29 January 2021
1,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A county cess collection contractor cannot keep demanding payments or clamping equipment once the county government itself has agreed to stop collecting from you.

What this practically means

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Executive summary

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Freedom Ltd, the registered proprietor of Plot No. 1948/MN/V (now No. 2028 MN/V) at Mazeras, Kilifi County, moved the Court by Notice of Motion dated 22nd August 2019 seeking an interlocutory injunction restraining the County Government of Kilifi and its cess collection contractor, Rain Drops Ltd, from entering the premises, demanding cess, clamping machinery, and disrupting development. The application was supported by an affidavit of the company's director, Harji Govind Ruda. Rain Drops Ltd opposed, asserting it was lawfully contracted under a 4th July 2014 agreement with the County Government to collect cess payable on excavations and transportation under the Kilifi County Finance Act, 2018, and raised a filing objection under the Companies Act 2015 and Order 9 Rule 2(c) of the Civil Procedure Rules. The County Government, however, recorded a consent with the Plaintiff undertaking not to demand cess and to desist from disrupting its quiet possession, marking the suit settled between them. The court found the 2nd Defendant, as mere agent of the 1st Defendant, could not continue collection where the principal had abandoned the claim, and could point to no contractual or statutory authority for doing so. Noting the admissions of entry and clamping on undisputed private property, the court found the Plaintiff bound to suffer loss and granted the injunction, with costs in the cause.

Key legal issues

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01

Whether an agent contracted to collect county cess may continue collection after the principal has abandoned the claim

Holding

No. The 2nd Defendant's authority derived entirely from the 1st Defendant; once the County Government consented not to demand cess from the Plaintiff, the agent's continued enforcement had no legal basis.

Reasoning

The court noted the 2nd Defendant admitted it was merely contracted by the County Government to collect cess. Having recorded a consent with the Plaintiff not to demand cess, the principal could not be contradicted by its own agent. The court found no contractual or statutory provision permitting the agent to levy cess independently, likening its insistence to a stranger weeping louder than the bereaved at a funeral.

p. 2
02

Whether the Plaintiff was entitled to an interlocutory injunction

Holding

Yes. Entry and clamping of the Plaintiff's vehicles and equipment on admitted private property was invasion entitling the Plaintiff to injunctive protection.

Reasoning

It was undisputed that the suit property belonged to the Plaintiff and that construction of a perimeter wall and pathways was under way. The 2nd Defendant admitted entering the property and clamping vehicles and earth-moving equipment, so the Plaintiff would suffer loss and damage, justifying an injunction to protect its property from invasion pending trial.

p. 2

Legal principles established

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  • A collection agent cannot enforce a levy where its principal, the levying authority, has resolved to discontinue enforcement against the party concerned.

Court orders

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  1. 1.Injunction restraining the Defendants from entering the Plaintiff's premises, trespass, demanding cess payment, clamping motor vehicles, equipment and machinery, harassing the Plaintiff's work force, impeding developments or disrupting the Plaintiff's quiet enjoyment of Plot No. 1948/MN/V (now No. 2028 MN/V) at Mazeras, Kilifi County, pending the hearing and determination of the suit
  2. 2.Costs of the Motion to be in the cause

Authorities

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Legislation

  • Companies Act2015
  • Civil Procedure RulesOrder 9 Rule 2(c)
  • Kilifi County Finance Act2018
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions pending hearing of the suit (Civil Procedure Rules)

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, "Freedom Limited v County Government of Kilifi & another [2021] KEELC 4608 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd August 2019 (suit at Malindi Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4608/eng@2021-01-29

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