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ELCDismissedEnvironment and Land Case Civil Suit 5 of 2022· [2022] KEELC 15239 (KLR)

Mangi & 7 others v Noor & 4 others

Environment and Land Court
6 December 2022
2,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop evictions that had already happened, ruling injunctions cannot undo completed demolitions.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 3rd February 2022 by eight Petitioners seeking interlocutory injunctions to restrain the 1st Respondent, Mohamed Osman Noor, from further evicting them and demolishing their houses on Portion Number 7652 (original Number 570/3) Majivuni, Malindi, or alternatively an order maintaining status quo. The Petitioners deponed that on 5th December 2021 the 1st Respondent, assisted by the OCS Malindi Police Station, demolished their houses purportedly executing an eviction order in ELC Case No. 296 of 2016 (elsewhere cited as No. 286 of 2016), to which they were neither party nor served, and that they occupy land at Majivuni Village, not the Mtangani plot. The 1st Respondent countered that he is the registered owner of parcel 7652, obtained an eviction decree against the Petitioners' family members in ELC Case No. 286 of 2016, which was executed on 5th December 2021, and that nothing remains to be restrained since the Petitioners are reconstructing on the land. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited, and the maxim that equity does not act in vain, Odeny J held that the Applicants had not established a prima facie case with a probability of success, and that an injunction cannot issue to restrain an event that has already occurred, the judgment having been executed without appeal or setting aside. The application was dismissed with costs to the 1st Respondent, but the court directed a ground report by all parties within 30 days and urged fast-tracking of the petition hearing.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

They did not; the suit land is the subject of a judgment in ELC Case No. 286 of 2016 which has been executed and has neither been appealed nor set aside

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited. The petition emanates from a judgment already executed by eviction on 5th December 2021. The Applicants, who were not parties to that suit, had to establish a prima facie case against the Respondents but failed to do so, particularly given the uncertainty about which plot they occupy.

p. 5
02

Whether an injunction can issue where the act sought to be restrained has already taken place

Holding

No; equity does not act in vain and the court cannot grant an injunction which would be ineffective for practical purposes

Reasoning

Relying on Kalya Soi Farmers' Cooperative Society v Paul Kirui and the Court of Appeal decision in Eric V.J. Makokha v Lawrence Sagini, the court held that since demolition and eviction had already occurred on 5th December 2021, there was nothing left to restrain. The purpose of an injunction is to preserve the substratum of the case, not to undo completed events.

p. 6

Legal principles established

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  • An injunction cannot issue to restrain an event that has already occurred, applying the maxim that equity does not act in vain
  • At the interlocutory stage the court does not make final findings of contested facts but weighs the relative strength of the parties' cases

Court orders

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  1. 1.A ground report by all the parties to the suit be produced in court to ascertain the status within 30 days from the date of the ruling
  2. 2.Parties to fast track the hearing of the petition
  3. 3.The application is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 35(2), 50, 159, 165, 258, 259
  • Evictions and Resettlement Procedures Act, 2012Sections 4, 5, 6, 7, 8, 9, 11
  • Civil Procedure RulesOrder 40; Order 21 [1]

Cases cited (11)

  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358

    Principles for grant of interlocutory injunctions

  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    Ca No. 77 of 2012

    Restatement of the Giella injunction principles

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) eKLR

    Definition of prima facie case

  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & Another
    (1990) eKLR

    Prima facie case with probability of success

  • Okiya Omtatah Okoiti & Another v The Nairobi City County Assembly & 5 others
    High Court Petition No. E009 of 2021

    Purpose of interlocutory injunction

  • National Commercial Bank Ltd v Olint Corporation
    2009

    Purpose of interlocutory injunction

  • Morris & Others vs Crown Office
    1970 pg 122

    Injunctions restrain events which have not happened

  • Benson Mbithi Wambua & 7 Others vs Sheraton Apartments Ltd & 5 others
    ELC Case No. 385 of 2019

    Injunction cannot restrain a completed event

  • American Cyanamid Co. v Ethicon Limited
    (1975) 1 ALL ER 504; (1975) A.C. 396 HL

    Court at interlocutory stage does not resolve conflicts of evidence

  • Kalya Soi Farmers' Cooperative Society v Paul Kirui & another
    [2013] eKLR

    Equity does not act in vain; injunction where action already taken

  • Eric V.J. Makokha & 4 Others vs. Lawrence Sagini & 2 Others
    Civil Application No.20 of 1994 (12/94 UR)

    Equity will not grant a remedy that would be in vain

Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya, 2010; Evictions and Resettlement Procedures Act, 2012

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, "Mangi & 7 others v Noor & 4 others", Case Analysis (2022). Environment and Land Case Civil Suit 5 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15239/eng@2022-12-06

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