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ELCDismissedCivil Suit No. 220 of 1999· [2022] KEELC 2085 (KLR)

Elinor Kadzo & 2 others v Municipal Council of Malindi Chairman Gede Primary School; Luka Omndi & 12 others Affected parties [2022] KEELC 2085 (KLR)

Environment and Land Court
18 January 2022
NMN.A. Matheka
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, a family occupying Kilifi/Mbaraka/Chembe/2 and neighbours of Kilifi/Mbaraka/Chembe/44 (occupied by Gede Primary School), brought a contempt application seeking: interim orders restraining placement of beacons on the two plots, notices to show cause against sixteen respondents including land officials, education and administration officers, the area MP, CDF officials, the school, the ACK Church and clergy, declarations of contempt of the injunction issued on 12th January 2000 by Justice Joyce Khaminwa in the same suit, and committal to six months' imprisonment. The applicants alleged that joint surveyors had failed to agree on the boundary and that the respondents insisted on unilaterally installing beacons, which would render them squatters. In reply, the Assistant County Commissioner denied participating in beacon placement, stating his mandate was only to provide security, and the 2nd respondent, appearing for ACK St. James Church Gede, stated the church occupied the property only as licensee and had not participated in any beacon placement, with no proof of contempt against it. The court, Matheka J, noted the suit had never proceeded to hearing since the 2000 injunction, and invoked Order 40 Rules 6 and 7 of the Civil Procedure Rules 2010 on lapse and discharge of interlocutory injunctions. Holding that injunctions preserve the subject matter rather than oppress a party, and finding no evidence of contempt adduced against any respondent, the court dismissed the application with costs in the cause and advised the plaintiffs to fix the main suit for hearing on a priority basis.

Key legal issues

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01

Whether contempt of the 12th January 2000 injunction orders was established

Holding

No contempt was proved; the application failed for want of evidence

Reasoning

The court observed that the injunction had been issued in 2000 and the suit had never proceeded to hearing. It noted that under Order 40 Rules 6 and 7 an interlocutory injunction lapses after twelve months absent sufficient reason, and that equitable injunctions cannot be used to oppress a party. On the contempt allegation itself, the applicants adduced no evidence of any respondent's participation in placing beacons; the respondents denied involvement. The application was therefore not merited.

p. 3
02

Status of the 2000 interlocutory injunction

Holding

The interlocutory injunction of 2000 had lapsed by operation of Order 40 Rule 6 since the suit was not determined within twelve months

Reasoning

The court invoked Order 40 Rules 6 and 7 of the Civil Procedure Rules 2010, which provide for lapse of an interlocutory injunction where the suit is not determined within twelve months and for discharge, variation or setting aside on application. The court reasoned that injunctions are meant to preserve the subject matter pending expeditious determination, not to oppress another party, and that the applicants had sat on the matter for over two decades.

p. 3

Legal principles established

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  • An interlocutory injunction lapses where the suit in which it was granted is not determined within twelve months, unless the court orders otherwise for sufficient reason
  • Contempt must be proved by evidence; committal orders cannot issue without proof of disobedience

Court orders

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  1. 1.Application dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure Rules, 2010Order 40 Rules 3, 6 and 7
  • Civil Procedure Rules, 1999 (Supreme Court of England)Part 81.4
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 40 Rule 3 of the Civil Procedure Rules, 2010

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, "Elinor Kadzo & 2 others v Municipal Council of Malindi Chairman Gede Primary School; Luka Omndi & 12 others Affected parties [2022] KEELC 2085 (KLR)", Case Analysis (2022). Civil Suit No. 220 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2085/eng@2022-01-18

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