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ELCPartially AllowedConstitutional Petition No 49 of 2019· [2022] KEELC 3224 (KLR)

Innovative Properties Limited v National Land Commission & 4 others (Constitutional Petition 49 of 2019) [2022] KEELC 3224 (KLR)

Environment and Land Court
19 July 2022
7,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Mombasa court refused to rewrite its own judgment to order evictions, and rejected an appeal delay excuse of nine months, telling the parties to follow proper procedure instead.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two competing notices of motion arising from the judgment delivered on January 27, 2021 in Constitutional Petition No 49 of 2019, in which the petitioner, Innovative Properties Limited, obtained a permanent injunction restraining the respondents from occupying, trespassing on or taking possession of the suit property, Mombasa/Block XVII/1469. The petitioner applied for review under section 80 of the Civil Procedure Act seeking an express eviction order because the Deputy Registrar declined to sign warrants to give possession absent an eviction order. The 5th respondent, the County Government of Mombasa, separately sought stay of execution, extension of time to file its notice of appeal and deemed filing of the notice, alleging it learned of the judgment late and that its clerk misplaced the appeal documents. The court framed four issues: review and eviction, stay, extension of time, and costs. It declined review, holding that the permanent injunction already granted sufficed to enable execution and that eviction orders, being in the nature of a mandatory injunction, cannot issue in review proceedings, which would amount to the court sitting on its own judgment. However, it permitted the petitioner to formally lodge an application for execution of the decree, with timelines for replies and submissions and an inter partes hearing. The 5th respondent's application was dismissed: its nine-month delay was inordinate and unexplained, its claim that the judgment was delivered without notice was contradicted by the record showing its counsel present on November 5, 2020 when the judgment date was fixed, and no security was offered. Status quo was to be maintained with no evictions pending the execution application, and each party was to bear its own costs.

Key legal issues

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01

Whether the court can review its own judgment to issue eviction orders

Holding

Refused; the permanent injunction already granted sufficed to enable execution, and eviction orders in the nature of a mandatory injunction cannot be issued in review proceedings

Reasoning

The court examined section 80 of the Civil Procedure Act and order 45 and found no new and important matter, mistake or error apparent on the face of the record. The petition never sought eviction; the granted permanent injunction was sufficient for the petitioner to execute its decree. Granting a mandatory injunction in review would require reappraising the evidence, converting the trial court into an appellate court over its own judgment, a jurisdiction it lacks.

p. 10
02

Whether the judgment of January 27, 2021 should be stayed pending the 5th respondent's intended appeal

Holding

Refused; the application was an afterthought filed after inordinate and unexplained delay and without any offer of security

Reasoning

Under order 42 rule 6 the applicant must show substantial loss, move without unreasonable delay and offer security. The application came about eight months after judgment; the claim that the judgment was delivered without notice was contradicted by the court record showing counsel for the 5th respondent present on November 5, 2020 when the judgment date was taken. No security was offered. The balance tilted to the decree holder's right to enjoy the fruits of the judgment.

p. 11
03

Whether time to file and serve the notice of appeal should be extended

Holding

Refused; the nine-month delay was inordinate and the explanation that the court clerk misplaced the documents was not credible

Reasoning

Applying the factors in rule 4 of the Court of Appeal Rules and African Airlines International Limited, the court weighed the length and reason for the delay, arguability and prejudice. The delay was nine months, the 5th respondent knew of the judgment date from open court and again from the draft decree served on March 11, 2021, and the clerk who allegedly lost the documents never swore an affidavit. The petitioner stood to be prejudiced by continued denial of use of the suit property.

p. 11

Legal principles established

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  • Review may be granted only on the grounds in section 80 of the Civil Procedure Act and order 45, and cannot be used to obtain a mandatory injunction not sought in the pleadings
  • A party who lies on oath in an application for extension of time does not deserve the favourable exercise of the court's discretion
  • Stay of execution requires proof of substantial loss, application without unreasonable delay and security for due performance of the decree

Court orders

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  1. 1.The notice of motion dated June 30, 2021 by the petitioners allowed strictly to the extent that the petitioner moves the court formally within the next seven days seeking express orders for execution of the decree compelling the respondents and/or their agents, employees, assigns or any other person authorized by them to vacate the suit property known as Mombasa/Block XVII/1469
  2. 2.The 1st, 2nd, 3rd, 4th and 5th respondents granted 7 days leave to file their replies to the said application
  3. 3.The petitioner accorded seven days to file and serve written submissions and the 1st to 5th respondents granted seven days leave to file their written submissions
  4. 4.Inter partes hearing on October 18, 2022 and further directions thereof
  5. 5.The notice of motion application dated September 23, 2021 dismissed with no order as to costs
  6. 6.In the meantime the status quo be maintained and there be no evictions of the respondents
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Civil Procedure Act, cap 21Sections 1A, 1B, 3A, 7(1), 63(e), 80, 95
  • Civil Procedure Rules, 2010Order 42 rule 6, Order 45(1), Order 51 rule 1, Order 22 rule 6, Order 29 rule 3
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal Rules 2010Rule 4
  • Government Proceedings Act, cap 40Section 21(4)

Cases cited (13)

  • Paul Musili Wambua v Attorney General & 2 others
    [2015] eKLR
  • Farida Mohamed Salim v Mohamed Ali Salim
    Matrimonial Cause No 9 of 2018 (unreported)
  • Jimcab Services Limited v Bartholomew Bernard Osodo & another
    [2018] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & another
    [2019] eKLR
  • Suraya Property Group Limited & another v VW & K Estate Limited & 2 others
    [2020] eKLR
  • Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others
    [2014] eKLR
  • African Airlines International Limited v Eastern & Southern African Trade & Development Bank
    CACA 50 of 2002
  • Henderson v Henderson
    (1843-60) ALL ER 378
  • Board of Governors Moi High School Kabarak & another v Malcolm Bell
    Supreme Court Petitions Nos 6 & 7 of 2013 (unreported)
  • Smartkar Enterprises & another v Mary Kemunto Ogendo
    [2021] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others
  • Thuita Mwangi v Kenya Airways Limited
    [2003] eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010 and sections 1A, 3A and 80 of the Civil Procedure Act, cap 21

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, "Innovative Properties Limited v National Land Commission & 4 others (Constitutional Petition 49 of 2019) [2022] KEELC 3224 (KLR)", Case Analysis (2022). Constitutional Petition No 49 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3224/eng@2022-07-19

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