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ELCDismissedEnvironment and Land Appeal 19 of 2021· [2022] KEELC 15033 (KLR)

Misty on the Moors Limited v T/A Fairmount Kenya Safari & 3 others

Environment and Land Court
7 November 2022
5,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Misty on the Moors Limited, the registered proprietor of leasehold interests in LR numbers 20646 and 20647, sued Mount Kenya Safari Club Limited in Nanyuki CMCC ELC No 15 of 2020, alleging the unlawful erection of gates on a common public access road restricting access to its property. It obtained ex parte interim injunctive orders on 3/4/2020 and later filed a contempt application dated 12/5/2020. The 2nd to 4th Respondents (K & K Amman Limited, KENIMO S.A and Kenya Wildlife Service) joined as interested parties and sought setting aside of the interim orders, citing human-wildlife conflict and security concerns. On 3/12/2020 the Chief Magistrate delivered a composite ruling vacating the interim injunction, finding the Appellant had not met the conditions for interlocutory relief and that public safety superseded its complaint. The Appellant appealed to the Environment and Land Court at Nanyuki, contending the application dated 2/4/2020 was never heard, that it was denied the right to be heard, that the magistrate made a final determination at the interlocutory stage, and seeking transfer of the suit to the ELC. AK Bor J framed four issues and, after a chronological review of the proceedings, held that directions had been given on 12/8/2020 and October 14, 2020 for submissions on the 2/4/2020 application; that parties were aware of the application for ruling; that the magistrate properly exercised her discretion under Order 40 Rule 7 in discharging the ex parte orders after weighing public safety; and that Section 78 of the Civil Procedure Act confers no power to transfer a pending magistrate's court matter to the ELC. The appeal was dismissed with costs to the Respondents, with the Appellant left to set down its suit for hearing before the Chief Magistrate.

Key legal issues

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01

Whether directions were given on the hearing of the application dated 2/4/2020

Holding

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.

Reasoning

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.

p. 7
02

Whether the magistrate wrongfully exercised her discretion in discharging the ex parte injunction

Holding

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.

Reasoning

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.

p. 8
03

Whether the ELC on appeal could take over and hear the suit pending before the Chief Magistrates Court

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 7
  • Civil Procedure RulesOrder 42 Rules 31 and 32
  • Civil Procedure ActSection 78
  • Contempt of Court ActSection 34

Cases cited (3)

  • Henry Njagi Muruariua v O Okello, District Commissioner Mbeere District & Another
    [2014] eKLR

    That when a court acts suo moto without inviting submissions, the right to be heard is violated

  • St Patrick's Hill School Limited v Bank of Africa Kenya Limited
    (2018) eKLR

    The court's unfettered discretion to discharge, vary or set aside an injunction order in the interests of justice

  • Ability Theraphy Place Limited v Charles Kibandi Kaguoya & Another
    (2021) eKLR

    What amounts to a moot case

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

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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, "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.