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ELCDismissedMiscellaneous Application (Notice of Motion dated 22nd November 2021), Nakuru ELC· [2023] KEELC 535 (KLR)

Rono & 9 others v Kenya Forest Service & 4 others (Environment and Land Miscellaneous Application E049 of 2021) [2023] KEELC 535 (KLR)

Environment and Land Court
2 February 2023
4,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled you cannot get a permanent injunction protecting land through a simple application—you must file a full lawsuit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) disposed of a Notice of Motion dated 22nd November 2021 in which members of the Ogiek Community sought a permanent injunction restraining the Kenya Forest Service and other respondents from evicting them, destroying structures or interfering with their occupation of land on the outskirts of the Mau Forest in Nakuru County, pending resettlement pursuant to the judgment in Nairobi ELC Suit No. 821 of 2012. The Applicants, claiming ancestral occupation since time immemorial, relied on the 2012 judgment which declared violations of their rights to life, dignity, non-discrimination and socio-economic rights, and directed the National Land Commission to open a register and identify settlement land. The 1st, 3rd, 4th and 5th Respondents, through a replying affidavit of Peter Mukira of Mau Forest Conservancy, contended that active court orders restrained the multi-agency team, of which KFS forms part, from entering the gazetted forest, and urged that KFS be allowed to perform its mandate under the Forest Conservation and Management Act 2016. The court framed three issues and held that a permanent injunction, being a final substantive order that fully determines the rights of parties, cannot issue in a miscellaneous application commenced by Notice of Motion, which is not an originating process. The court also observed that enforcement of the 2012 judgment lies in the court that issued it. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a permanent injunction can be granted in a miscellaneous application

Holding

No. Miscellaneous applications are not intended to enforce substantive rights against other parties; a Notice of Motion is not an originating process and cannot sustain a permanent injunction

Reasoning

The court traced the meaning of a 'suit' under Section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules, holding suits must be instituted by plaint, petition or originating summons. Relying on Chemjor, Tatecoh, Norah Ndunge Henry and Kalyonge, it held miscellaneous applications are permissible only where no 'action' is being enforced and no rights between parties are to be determined.

p. 8
02

Whether the permanent injunction sought should issue against the 1st Respondent

Holding

No. A permanent injunction can only be granted upon hearing a suit on its merits, and this application was a miscellaneous application incapable of supporting such an order

Reasoning

The court applied Kenya Power & Lighting Co. Ltd v Sherifi Molana Habib and Bandari Investments, holding permanent injunctions issue after a full hearing on the merits with evidence tendered. The Applicants, seeking to enforce the judgment in Nairobi ELC Suit No. 821 of 2012, were directed that the proper forum for post-judgment enforcement is the court that issued those orders.

p. 9
03

Who bears the costs of the application

Holding

The Applicants, costs following the event under Section 27 of the Civil Procedure Act

Reasoning

Applying the general rule that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise, the court dismissed the application with costs to the Respondents.

p. 10

Legal principles established

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  • A permanent injunction cannot issue in a miscellaneous application; a party seeking such an order must file a substantive suit
  • A permanent injunction is granted only upon full hearing of a suit and fully determines the rights of the parties
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The Applicants' application dated 22nd November 2021 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 19, 2, 27
  • Civil Procedure Rules, 2010Order 51, Order 3 Rule 1
  • Forest Conservation and Management Act2016
  • Constitution of Kenya, 2010Articles 26, 27, 28, 43, 56 (as referenced in prior judgment)
  • Former Constitution of KenyaSections 71, 82 (as referenced in prior judgment)

Cases cited (17)

  • Palace Investments Ltd vs Geoffrey Kariuki Mwenda & Another
    NRB CA Civil Appeal No. 127 of 2007 [2007] eKLR
  • Janet Kaphiphe Ouma & Another vs Marie Stopes International Kenya
    Kisumu HCC No. 68 of 2007
  • Interchemie EA Limited vs Nakuru Veterinary Center Limited
    Nairobi (Milimani) HCC No. 165 B of 2000
  • Giella vs Cassman Brown
  • Alex Wainaina t/a John Commercial Agencies vs Johnson Wanjihia
    [2015] eKLR
  • Mrao vs First American Bank of Kenya Limited & 2 Others
  • Films Rover International Ltd & Others vs Common Film Sales Ltd
    [1986] EAER 772
  • Nandan Pictures Ltd vs Art Pictures Ltd & Others
  • Joseph Oduor Anode vs Kenya Red Cross Society
    [2012]
  • Rajab Kosgei Magut vs Nuru Jepleting Choge
    [2020] eKLR
  • Joseph Kibowen Chemor vs William C Kasera
    (2013) eKLR
  • Tatecoh Housing and Co-op Sacco Ltd vs Qwetu Sacco Ltd
    (2021) eKLR
  • Norah Ndunge Henry & another v Abednego Mutisya & another
    [2022] eKLR
  • Kalyonge vs Karanja
    (Miscellaneous Application E070 of 2021) [2022] KEHC 16174 (KLR)
  • Kenya Power & Lighting Co. Limited vs Sherifi Molana Habib
    [2018] eKLR
  • Bandari Investments & Co. Ltd v Martin Chiponda & 139 others
    [2022] eKLR
  • Nairobi West Hospital Limited vs Joseph Kariha & Another
    [2018] eKLR
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rono & 9 others v Kenya Forest Service & 4 others (Environment and Land Miscellaneous Application E049 of 2021) [2023] KEELC 535 (KLR)", Case Analysis (2023). Miscellaneous Application (Notice of Motion dated 22nd November 2021), Nakuru ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/535/eng@2023-02-02

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