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ELCDismissedMombasa ELC No. 3 of 2015· [2022] KEELC 2157 (KLR)

Two Thirds Investment Limited & 10 others v Katana Said Kalama & 3 others [2022] KEELC 2157 (KLR)

Environment and Land Court
13 January 2022
MSMunyao Sila
1,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to order demolition of structures on protected land because the applicants couldn't prove the defendants bound by the earlier injunction built them.

What this practically means

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Executive summary

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The applicants in Mombasa ELC No. 3 of 2015 applied by notice of motion dated 20 September 2021 for a mandatory injunction compelling the four defendants to demolish all structures on the 'protected plots' (the 128 plots from which the defendants were restrained by an interlocutory injunction) and to vacate them within seven days, failing which the plaintiffs would demolish and evict, with police security from Bamburi Police Station. The background is that the four defendants, together with others, had filed a consolidated adverse possession suit (Mombasa ELC No. 232 of 2014 (OS)) over parcel MN/II/390; a survey of 30 June 2015 found the defendants occupied 30 of 158 plots, and Omollo J granted an injunction limited to the remaining 128 protected plots. The applicants alleged that following a September 2021 picking survey, structures had been erected on the protected plots, plots subdivided and sold, and titles sought to be obtained through a separate originating summons at the Chief Magistrate's Court. Sidi Mashe Wanje denied breach, contending the sale agreements predated the order and that the mandatory orders sought were premature. The court held that the order of 6 July 2018 was made before consolidation and bound only the four defendants; there was no evidence that the new developments were attributable to those defendants, and it was probable the occupation was by the 41 adverse-possession plaintiffs who were never subject to the order. Granting the orders would affect strangers to the order and prematurely determine their suit. The application was dismissed with costs.

Key legal issues

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01

Whether a mandatory injunction could issue to compel demolition and eviction for breach of an existing injunction order

Holding

The application was dismissed; no mandatory injunction was granted

Reasoning

The court found that although there appeared to be developments on the protected plots not present at the 2015 survey, there was no evidence that these were made by the four defendants bound by the order of 6 July 2018. The adverse possession case involved 41 persons who were never subject to that order, and it was probable that they occupied the parcels. Granting the orders would affect persons not bound by the order and would prematurely determine their pending suit.

p. 2
02

The scope and binding effect of the interlocutory order of 6 July 2018

Holding

The order of 6 July 2018 was made in Mombasa ELC No. 3 of 2015 before consolidation and bound only the four defendants in that suit, not the other plaintiffs in the adverse possession originating summons

Reasoning

The injunction orders preceded the consolidation of 2 November 2018 and were issued against the four named defendants only. The other 37 persons in the consolidated adverse possession suit were never enjoined by the injunction, so it would be unjust to issue demolition and eviction orders which in substance would target them.

p. 2

Legal principles established

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  • Injunctive orders bind only the parties against whom they were made and cannot be enforced against persons who were not subject to the order
  • A mandatory injunction at interlocutory stage requires clear evidence and special circumstances, and will not be granted where it would render the main suit academic or pre-empt its hearing

Court orders

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  1. 1.The application dated 20 September 2021 is dismissed with costs

Authorities

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Cases cited (4)

  • New Design Construction Limited vs. Lyne Kerubo Mandieka
    (2020) eKLR
  • Joseph Kaloki t/a Royal Family Assembly vs. Nancy Atieno Ouma
    (2020) eKLR
  • Kenya Breweries Limited and Another vs. Washington O. Okeyo
    (2002) eKLR
  • Esther Wanjiku Mwangi & 3 Others vs. Wambui Ngarachu
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied by the court's mandate over land); not expressly stated in the judgment

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, "Two Thirds Investment Limited & 10 others v Katana Said Kalama & 3 others [2022] KEELC 2157 (KLR)", Case Analysis (2022). Mombasa ELC No. 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2157/eng@2022-01-13

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