Supplies and Services Limited & 2 others v Kenya Airports Authority (KAA) & 8 others; Kenya Airports Authority & another (Interested Parties) (Civil Suit E388, E405 & E410 of 2021 (Consolidated)) [2022] KEELC 3190 (KLR)
The bottom line
#A Kenyan land court refused injunctions and contempt claims over a disputed Nairobi plot, ordering both sides to freeze the property pending a priority trial.
What this practically means
#Executive summary
#Key legal issues
#Review on ground of new and important matter
Review dismissed; the matter was knowable with due diligence
Section 80 of the Civil Procedure Act and Order 45 Rule 1 permit review on discovery of new and important matter only where the matter could not have been known despite due diligence. KAA had disclosed Pumwani Service Station Ltd's interest in its pleadings, so Supplies and Services Ltd could not claim ignorance. The alternative prayer would amount to a mandatory injunction and was also disallowed.
Repeat injunction application by Supplies and Services Ltd
Dismissed; res judicata as against KAA, and the same ruling applied as against Pumwani
The 17th January 2022 application sought similar orders to the application dated 15th November 2021, which was dismissed in the ruling of 20th December 2021. The matter is res judicata against KAA, and against Pumwani the court adopted its earlier ruling dismissing the application on the same facts and grounds.
Interlocutory injunctions by Pumwani and Terazzo
Both applications dismissed for failure to prove irreparable injury
Applying Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nielsen, an applicant must establish a prima facie case, irreparable injury not compensable in damages, and the balance of convenience. Although both applicants established a prima facie case, neither submitted nor demonstrated irreparable injury; speculative injury or mere apprehension is insufficient. The permanent injunction and mandamus prayers by Pumwani could not issue at the interlocutory stage.
Contempt of the 15th December 2021 status quo order
Application dismissed; breach not proved to the required standard
The status quo order was clear and KAA had knowledge, but the applicant failed to prove what the status quo was and how it was disturbed, and failed to prove breach. Further, it was evident that Pumwani Service Station Ltd, not the Interested Parties, was in possession and constructing, and Thwama had purged the contempt as KAA's agent.
Preservation of the suit property pending trial
Court invoked its inherent powers to preserve the status quo
Given the momentous issues and competing claims of ownership over one parcel, the court exercised its inherent authority under sections 1, 1A, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution to preserve the substratum of the suit: Pumwani remains in possession but is prohibited from any development for six months, with the suit on a priority basis.
Legal principles established
#- A permanent injunction cannot issue at an interlocutory stage as it determines the rights of the parties
- Establishing a prima facie case alone is insufficient for an interlocutory injunction; irreparable injury must also be shown
- The standard of proof in contempt proceedings is higher than the balance of probabilities
- A status quo order is an ancillary preservation order, distinct from an injunction
- Discovery of new and important matter for review is only allowable where due diligence could not have revealed it
Court orders
#- 1.Notice of Motion dated 31st December 2021 dismissed with costs
- 2.Notice of Motion dated 17th January 2022 dismissed
- 3.Notice of Motion dated 25th November 2021 dismissed
- 4.Notice of Motion application dated 30th November 2021 dismissed
- 5.Notice of Motion application dated 6th January 2022 dismissed with costs
- 6.Status quo to be maintained pending hearing and determination of the suit: Pumwani Service Station Ltd to remain in possession but prohibited from any acts of excavation, construction, building, developing or altering the suit property for the next six months
- 7.Suit to be heard on a priority basis; mention in 14 days for pre-trial directions
- Jurisdiction invoked
- Inherent authority under sections 1, 1A, 3 & 3A of the Civil Procedure Act and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Supplies and Services Limited & 2 others v Kenya Airports Authority (KAA) & 8 others; Kenya Airports Authority & another (Interested Parties) (Civil Suit E388, E405 & E410 of 2021 (Consolidated)) [2022] KEELC 3190 (KLR)", Case Analysis (2022). ELC E388/2021 (consolidated matters). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3190/eng@2022-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.