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ELCPartially AllowedELC E388/2021 (consolidated matters)· [2022] KEELC 3190 (KLR)

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)

Environment and Land Court
2 June 2022
4,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (M.D. Mwangi J) on five consolidated applications (two were withdrawn) arising from competing claims of ownership over unsurveyed commercial plot No. A - Nairobi, a dispute the court described as epitomising Kenya's 'land question'. Supplies and Services Ltd's application for review of the ruling of 20th December 2021 failed because the alleged newly discovered matter (Pumwani Service Station Ltd's interest) was disclosed in KAA's pleadings and was knowable with due diligence; the alternative status quo prayer was disallowed as tantamount to a mandatory injunction. The repeat injunction application of 17th January 2022 was dismissed as res judicata against KAA and by adoption of the earlier ruling against Pumwani. Pumwani Service Station Ltd's application of 25th November 2021 and Terazzo Enterprises Ltd's application of 30th November 2021 were each dismissed: although both established a prima facie case under Giella v Cassman Brown, neither proved irreparable injury not compensable by damages, and Pumwani's permanent injunction and mandamus prayers could not issue interlocutorily. Terazzo's contempt application against KAA and Thwama Building Services Ltd for breach of the 15th December 2021 status quo order failed, the applicant not proving breach to the standard in Mutitika v Baharini Farm (higher than balance of probabilities), and it emerged that Pumwani, not the Interested Parties, was in possession and constructing. Exercising inherent powers under sections 1, 1A, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution, the court ordered the status quo maintained: Pumwani to remain in possession but prohibited from any development for six months, with the suit listed for priority hearing and mention in fourteen days. Two dismissals carried costs.

Key legal issues

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01

Review on ground of new and important matter

Holding

Review dismissed; the matter was knowable with due diligence

Reasoning

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.

p. 5
02

Repeat injunction application by Supplies and Services Ltd

Holding

Dismissed; res judicata as against KAA, and the same ruling applied as against Pumwani

Reasoning

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.

p. 6
03

Interlocutory injunctions by Pumwani and Terazzo

Holding

Both applications dismissed for failure to prove irreparable injury

Reasoning

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.

p. 7
04

Contempt of the 15th December 2021 status quo order

Holding

Application dismissed; breach not proved to the required standard

Reasoning

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.

p. 9
05

Preservation of the suit property pending trial

Holding

Court invoked its inherent powers to preserve the status quo

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Notice of Motion dated 31st December 2021 dismissed with costs
  2. 2.Notice of Motion dated 17th January 2022 dismissed
  3. 3.Notice of Motion dated 25th November 2021 dismissed
  4. 4.Notice of Motion application dated 30th November 2021 dismissed
  5. 5.Notice of Motion application dated 6th January 2022 dismissed with costs
  6. 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. 7.Suit to be heard on a priority basis; mention in 14 days for pre-trial directions

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1, 1A, 3 & 3A
  • Civil Procedure Rules 2010Order 45 Rule 1(1)
  • Constitution of Kenya 2010Article 159

Cases cited (9)

  • Airland Tours and Travels Ltd vs National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 378
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Kenya Power & Lighting Company Ltd vs Sheriff Molana Habib
    (2018) eKLR
  • Kenya Commercial Finance Company Ltd vs Afraha Education Centre
    (2001) Vol 1 EA 86
  • Boabab Beach Resort
  • Saifudeen Abdullahi & 4 others
    Mombasa High Court Misc. Civil Cause no 11 of 2012
  • Mutitika vs Baharini Farm Limited
    [1985] KLR 229
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Inherent authority under sections 1, 1A, 3 & 3A of the Civil Procedure Act and Article 159 of the Constitution

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, "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.