Bandari Investments & Co. Ltd v Martin Chiponda & 139 others [2022] KEELC 1469 (KLR)
The bottom line
#A Kenyan court ordered a developer who illegally demolished homes to let residents rebuild, ruling no one can gain advantage through unlawful eviction.
What this practically means
#Executive summary
#Key legal issues
#Distinction between prohibitory and mandatory injunctions and the higher threshold for the latter
A mandatory injunction requires positive steps and will not normally be granted on an interlocutory application absent special circumstances, a clear case, or an attempt by the defendant to steal a match on the plaintiff.
The court relied on Shepard Homes v Sandham (Megarry J) for the distinction between prohibitory and mandatory injunctions, and on Kenya Breweries v Washington Okeyo, Malier Unissa Karim v Edward Oluoch Odumbe and Locabail International Finance v Agro Export for the higher threshold. A mandatory injunction granted on motion usually exhausts the relief, so it is approached with great caution and granted only in clear, special cases.
Whether the Plaintiffs' demolition of the Defendants' structures during the pendency of the suit and in breach of an injunction order justified reinstatement
The demolition and eviction were illegal, conducted without a court order and in breach of the order of 19th August 2021, amounting to an attempt to steal a match; the 1st and 18th Defendants met the threshold for both mandatory and prohibitory injunctions.
The court's site visit on 19th November 2021 revealed debris, remains of homesteads, a school, Mosque and hospital, bulldozer footprints and evidence of recent human settlement, disproving the Plaintiff's claim that no structures existed. The Plaintiff used police force and brutality rather than due process, contrary to Sections 151A-E of the Land Act. Allowing the Plaintiff to keep the advantage gained would render the suit academic and defeat a fair hearing.
Whether permanent injunction orders could issue on an interlocutory application
The court found the Defendants had demonstrated the threshold and granted injunctions operative until the hearing and determination of the suit, effectively restraining the Plaintiff pending full trial.
The court observed that permanent injunctions are ordinarily granted after full hearing, but invoked its inherent powers under the overriding objective provisions (Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act, Sections 3 and 19(1) of the ELC Act and Article 159 of the Constitution) to grant relief given the blatant illegality, directing an expedited full trial within 90 days thereafter.
Costs
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful 1st and 18th Defendants were awarded costs of the application.
Applying Section 27(1) of the Civil Procedure Act, the court held that the events of the case favoured the 1st and 18th Defendants, who succeeded on the application, and therefore the Plaintiff was to bear the costs.
Legal principles established
#- A mandatory injunction at interlocutory stage is granted only in clear cases or where the defendant attempts to steal a match on the plaintiff.
- A party must not be allowed to retain a position of advantage obtained through a planned unlawful act in disregard of court orders.
- Court orders must be obeyed at all costs until varied, set aside, reviewed or a stay or appeal is obtained.
- Forcible eviction and demolition without due process contrary to the Land Act is illegal.
Court orders
#- 1.A mandatory injunction issued compelling the Plaintiff, its agents, servants, employees, proxies or otherwise to allow the 1st and 18th Defendants to rebuild their demolished houses in the same place on the suit property and to conserve them until the hearing and determination of the suit
- 2.A prohibitory injunction issued barring the Plaintiff, its agents, servants, employees, proxies or otherwise from again evicting or attempting to retake possession by demolishing or otherwise interfering with the 1st and 18th Defendants' quiet and peaceful occupation of the suit property pending the hearing and determination of the suit
- 3.The suit to be fixed for full trial within the next Ninety (90) days from the date of the ruling, with a Pre-Trial Conference on 15th March, 2022
- 4.Costs of the application awarded to the 1st and 18th Defendants/Applicants, to be borne by the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 3 & 3A of the Civil Procedure Act, Cap. 21; Order 51 of the Civil Procedure Rules, 2010; Sections 3 and 19(1) of the Environment and Land Court Act, No. 19 of 2011; Article 159(1) and (2) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hussein v Managing Director/CEO, Islamic Foundation Kenya & 5 others (Land Case E157 of 2024) [2026] KEELC 1855 (KLR)[2026] KEELC 1855 (KLR)19 Mar 2026
- Langat & 3 others (Suing as the administrators of the Estate of Samuel Cheruiyot Lang’at)) v Byomdo (Environment & Land Case 114 of 2018) [2025] KEELC 45 (KLR)[2025] KEELC 45 (KLR)22 Jan 2025
- Kibera v Kamata & 2 others; Mutemi (Interested Party) (Environment and Land Appeal E030 of 2022) [2024] KEELC 7279 (KLR)[2024] KEELC 7279 (KLR)31 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Bandari Investments & Co. Ltd v Martin Chiponda & 139 others [2022] KEELC 1469 (KLR)", Case Analysis (2022). ELC No. 16 of 2021 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1469/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.