Sere Technologies Limited & another v Forward Cars Limited & 6 others [2022] KEELC 1897 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed landowners' repeat injunction application, warning that re-filing the same request after orders were vacated wastes the court's time and costs money.
What this practically means
#Executive summary
#Key legal issues
#Abuse of due process by duplicative applications
The application dated 11th November 2021 duplicated a pending, unprosecuted application dated 25th May 2018 seeking similar injunction orders and constituted an abuse of court process
The court traced the history of the suit and found the earlier injunction application still pending on record. Filing a near-identical application during its pendency compounded the issues and impeded expeditious disposal. Multiplicity of applications on the same subject matter between the same parties, as illustrated in Saraki v Kotoye, amounts to abuse of judicial process.
Jurisdiction to entertain the application after status quo orders were vacated
The court lacked jurisdiction to grant injunction orders effectively superseding the 21st July 2021 orders vacating status quo; the remedy was appeal
The status quo orders granted on 30th May 2018 had been vacated on 21st July 2021. Re-granting equivalent orders would amount to the same judge-level court sitting on appeal over a decision of a judge with concurrent jurisdiction. Following Civicon Limited v Kenya Revenue Authority, a litigant cannot re-agitate decided issues through fresh originating processes; the proper devices are appeal or review.
Striking out a suit pending before the Chief Magistrate's Court
The court had no jurisdiction to strike out ELC Case No. E270 of 2021 pending before the subordinate court
Striking-out jurisdiction under Order 2 Rule 16 of the Civil Procedure Rules is exercisable only by the court before which the suit is filed. Exercising it over a foreign suit would usurp the trial court's mandate and the ELC's appellate jurisdiction, requiring deference. Aggrieved parties should apply in the lower court.
Threshold for temporary and mandatory injunction
Plaintiffs failed to establish a prima facie case; the property was registered in the purchasers' names following a statutory sale protected under section 99 of the Land Act, and no exceptional circumstances justified a mandatory injunction
It was common ground the property had been sold by public auction and transferred to the 4th and 5th Defendants, who held registered title under sections 24 and 25 of the Land Registration Act. Restraining a registered proprietor requires justifiable grounds, and a mandatory injunction demands a higher standard, in exceptional and the clearest of cases, none of which were demonstrated.
Legal principles established
#- A litigant cannot file a multiplicity of applications seeking similar orders in the same matter while a previous application remains pending; doing so is an abuse of the court process
- A court cannot grant orders that supersede or sit on appeal over the decision of a court of concurrent jurisdiction; the aggrieved party must appeal or seek review
- A temporary injunction against a registered proprietor can only issue in rare and exceptional circumstances, and a mandatory injunction requires a higher standard, in exceptional and the clearest of cases
Court orders
#- 1.Declaration that the Notice of Motion dated 11th November 2021 constitutes an abuse of the due process of the court
- 2.Finding that the court is devoid of jurisdiction to entertain the application
- 3.Finding that the Plaintiffs/Applicants have not met the threshold for temporary and mandatory injunction
- 4.Notice of Motion dated 11th November 2021 dismissed with costs to the Defendants/Respondents
- Jurisdiction invoked
- Articles 159 and 165 of the Constitution (original jurisdiction of the Environment and Land Court over land); no specific provision pleaded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sere Technologies Limited & another v Forward Cars Limited & 6 others [2022] KEELC 1897 (KLR)", Case Analysis (2022). ELC Case (Nairobi), Notice of Motion dated 11th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1897/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.