Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 16 of 2021 (Mombasa)· [2022] KEELC 1469 (KLR)

Bandari Investments & Co. Ltd v Martin Chiponda & 139 others [2022] KEELC 1469 (KLR)

Environment and Land Court of Kenya
9 February 2022
7,645 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

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

#
This is a ruling of the Environment and Land Court at Mombasa (L.L. Naikuni, J) dated 9th February 2022 on a Notice of Motion dated 30th September 2021 by the 1st and 18th Defendants in a suit by Bandari Investments Company Limited seeking permanent injunction, mandatory demolition of structures, vacant possession and compensation over Plot No. 817 (Original 324/2) Section II/MN, Nguu Tatu, Mombasa. The Applicants sought a mandatory injunction to rebuild their demolished houses, a prohibitory injunction against further eviction, and dismissal or stay of the suit pending prosecution of the Plaintiff's directors. The court framed three issues: the threshold for the injunctions sought, entitlement to the orders, and costs. Applying the distinction between prohibitory and mandatory injunctions (Shepard Homes v Sandham) and the higher threshold for mandatory relief (Kenya Breweries v Washington Okeyo; Malier Unissa Karim v Edward Oluoch Odumbe; Locabail v Agro Export), the court found special circumstances: demolitions and evictions were carried out on 14th August, 28th August and 14th/15th September 2021 in breach of an injunction issued on 19th August 2021, contrary to Sections 151A-E of the Land Act. A court site visit on 19th November 2021 revealed debris, bulldozer tracks and remains of homesteads, a school, Mosque and hospital, disproving the Plaintiff's denial of occupation. The court held the Plaintiff was attempting to steal a match and could not retain an advantage gained through blatant unlawful acts. The application succeeded: a mandatory injunction allowing the 1st and 18th Defendants to rebuild, a prohibitory injunction against further eviction, directions for trial within 90 days with a pre-trial conference on 15th March 2022, and costs to the Applicants. The prayer for dismissal/stay of the suit was not granted.

Key legal issues

#
01

Distinction between prohibitory and mandatory injunctions and the higher threshold for the latter

Holding

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.

Reasoning

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.

p. 6
02

Whether the Plaintiffs' demolition of the Defendants' structures during the pendency of the suit and in breach of an injunction order justified reinstatement

Holding

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.

Reasoning

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.

p. 8
03

Whether permanent injunction orders could issue on an interlocutory application

Holding

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.

Reasoning

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.

p. 6
04

Costs

Holding

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.

Reasoning

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.

p. 8

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. 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. 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. 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. 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.

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.