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ELCDismissedNotice of Motion dated 22nd November, 2021 (suit number not stated in the judgment)· [2022] KEELC 2503 (KLR)

Orbit Chemical Industries Ltd v Nairobi City County & 3 others (Environment & Land Case E401 of 2021) [2022] KEELC 2503 (KLR)

Environment and Land Court
7 July 2022
1,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed Geoner Systems' injunction bid because existing 2006 court orders already protected its land, and its online evidence was inadmissible.

What this practically means

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Executive summary

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Geoner Systems Limited, the registered proprietor of L.R. No. 12425, which it sub-divided into Nairobi Block 263/1 to 263/1339, moved the court by Notice of Motion dated 22nd November 2021 seeking a temporary injunction restraining the Defendants from trespassing upon, invading, subdividing or interfering with the property pending the hearing of the suit, together with an order compelling police and state officers to provide security, and costs. Through its Managing Director, the Plaintiff alleged that on 19th November 2021 the 3rd and 4th Defendants trespassed with goons and members of the public and incited them to invade the vacant land, violating its property rights under Article 40 of the Constitution. The Plaintiff relied on a ruling of 5th May 2006 in High Court Misc. Civil Application No. 784 of 1996, which declared that no person could enter or remain on the suit property without the Plaintiff's leave and provided for eviction orders on non-compliance. The 1st Defendant, through the county solicitor, countered that no cause of action was disclosed against it, that the alleged goons were not joined, and that the Defendants had no presence or possession on the land. The court found no evidence of the alleged incitement before it: online links referred to were never opened in court with leave, and thus had no evidential value. It further held that since the 2006 orders had never been set aside, they sufficed to restrain interference with the property and a fresh injunction application was unnecessary. The application was dismissed with no order as to costs on 7th July 2022.

Key legal issues

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01

Sufficiency of evidence supporting the injunction application

Holding

The Plaintiff produced no evidence of the alleged incitement by the 3rd and 4th Defendants; the online links relied on had no evidential value because leave was not sought to open them before the parties

Reasoning

The applicant bore the burden of placing before the court proof of the trespass and incitement said to justify injunctive relief. Although online links were cited, they were never opened in court in the presence of the parties, denying them an opportunity to respond. The court therefore treated the alleged 19th November 2021 incitement as unproven, undermining the foundation of the interlocutory relief sought.

p. 3
02

Necessity of a fresh injunction given subsisting orders in HCCC Misc. Application No. 784 of 1996

Holding

The order of 5th May 2006, which declared that no person may enter or remain on L.R. No. 12425 without leave of the Plaintiff and provided for eviction on non-compliance, was never set aside and suffices to restrain the Defendants; a fresh injunction application was unnecessary

Reasoning

The Plaintiff itself relied on the 2006 ruling, which contains a declaration restraining all persons from entering the suit property and an enforcement mechanism via eviction applications. Because that order remains in force and unchallenged, it already affords the protection sought. Duplicating it with a new interlocutory injunction would serve no purpose, so the application was dismissed.

p. 3
03

Whether the Plaintiff has a cause of action against the Defendants

Holding

The court did not make a definitive finding, but the dismissal was grounded on the sufficiency of the existing orders rather than on an adjudication of the Plaintiff's cause of action against each Defendant

Reasoning

The 1st Defendant argued that no cause of action was disclosed, that the alleged goons were not joined, and that the Defendants neither resided on nor possessed the land. The court did not rule on these submissions expressly; instead it disposed of the application on the narrow basis that the subsisting 2006 orders rendered the injunction application unnecessary. The substantive suit remains pending.

p. 3

Legal principles established

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  • Where a subsisting, unset-aside court order already protects a party's possession of land, it is unnecessary to file a fresh application for injunctive orders
  • Online links referred to by a party have no evidential value unless the court grants leave for them to be opened in the presence of all parties, who must be able to watch and respond

Court orders

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  1. 1.The application dated 22nd November, 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (protection of right to property, cited by Plaintiff's counsel)

Cases cited (1)

  • High Court Miscellaneous Application Number 784 of 1996 (Ruling delivered 5th May, 2006)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (no specific constitutional/statutory provision invoked 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, "Orbit Chemical Industries Ltd v Nairobi City County & 3 others (Environment & Land Case E401 of 2021) [2022] KEELC 2503 (KLR)", Case Analysis (2022). Notice of Motion dated 22nd November, 2021 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2503/eng@2022-07-07

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