Misty on the Moors Limited v T/A Fairmount Kenya Safari & 3 others
The bottom line
#A Kenyan court confirmed that ex parte injunctions can be lifted for public safety reasons, and appeals cannot be used to transfer cases to a higher court.
What this practically means
#Executive summary
#Key legal issues
#Whether directions were given on the hearing of the application dated 2/4/2020
The trial court gave directions on 12/8/2020 and October 14, 2020 for filing of submissions on the application dated 2/4/2020, and parties were aware of the application for ruling.
The court reviewed the typed proceedings chronologically. The ruling of 12/8/2020 directed parties to file submissions on the plaintiff's pending application, and on October 14, 2020 the Appellant's advocate himself sought directions on his two pending applications. The Appellant was granted leave to file submissions and did not seek clarification on which application would be ruled on.
Whether the magistrate wrongfully exercised her discretion in discharging the ex parte injunction
No. The magistrate weighed the Appellant's access complaint against the risk of human-wildlife conflict and public safety, and found the Appellant had not met the conditions for an interlocutory injunction.
The court held the magistrate considered the threat of human-wildlife conflict as a matter of public safety, noted the Appellant's visitors were not denied entry at the manned gates, and found no demonstration that the discretion was wrongly exercised. Considering public safety at the interlocutory stage was not a final determination of the suit.
Whether the ELC on appeal could take over and hear the suit pending before the Chief Magistrates Court
No. Section 78 of the Civil Procedure Act confines appellate powers to determining the case finally, remanding, framing issues, taking additional evidence or ordering a new trial - not transferring matters.
The court examined the statutory parameters of appellate power under Section 78 and held transfer of a pending magistrate's court matter to the ELC is not among them, rejecting the Appellant's final prayer.
Legal principles established
#- Order 40 Rule 7 of the Civil Procedure Rules empowers the court to discharge, vary or set aside an injunction order on the application of a party dissatisfied with it.
- A trial court may properly deal with an application for a temporary injunction simultaneously with applications to set aside the ex parte orders.
- Section 78 of the Civil Procedure Act does not empower a first appellate court to transfer a pending matter from a magistrate's court to the ELC.
Court orders
#- 1.The appeal is dismissed with costs to the Respondents
- On appeal from
- Chief Magistrates' Court at Nanyuki (Environment and Land Court Case No 15 of 2020)
- Nanyuki CMCC ELC No 15 of 2020
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appeal from magistrates' court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Misty on the Moors Limited v T/A Fairmount Kenya Safari & 3 others", Case Analysis (2022). Environment and Land Appeal 19 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15033/eng@2022-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.