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ELCPartially AllowedNot stated in the ruling (Notice of Motion dated 8th June 2022)· [2023] KEELC 652 (KLR)

Ethics & Anti-Corruption Commission v Nzoka & another (Environment & Land Case E005 of 2022) [2023] KEELC 652 (KLR)

Environment and Land Court
9 February 2023
5,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission (EACC) moved the Environment and Land Court at Kitui by Notice of Motion dated 8th June 2022 seeking a temporary injunction restraining the ACK Diocese of Kitui and another defendant from alienating, selling, charging, leasing or developing land planned vide Part Development Plan No. KIT/29/06/3 and allotted for the Kitui Integrated Programme for the Visually Impaired, and further seeking a mandatory injunction compelling the defendants to vacate and hand over possession. The Commission relied on investigations indicating the land was government/public land reserved for hostels for the visually impaired, but had been leased to Jordan Hospital Medical College, Uniq Academy and Township Nursery School. The respondents denied the existence of a legal entity called the Kitui Integrated Programme, asserted the land was allocated to the ACK Diocese, and contended the applicant had not established a prima facie case, irreparable injury or balance of convenience. L. G. Kimani J framed four issues around the Giella v Cassman Brown thresholds, mandatory injunctions, the appropriate orders and costs. The court held the applicant had demonstrated a prima facie breach of the conditions of the grant since the land, allotted for hostels, was admittedly put to other uses; that where the complained-of act may be unlawful, adequacy of damages does not arise; and that the balance of convenience favoured preservation of the property rather than either party. The mandatory injunction was refused, as it would decide the suit prematurely and affect absent third parties. The court ordered maintenance of the prevailing status quo preserving the property, expedition of the hearing, pre-trial directions within 14 days, and that costs of the application be in the cause.

Key legal issues

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01

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

Holding

A prima facie case was established: the land was allotted for hostels for the visually impaired and it is admitted the land and buildings are not used for that purpose, suggesting breach of conditions of the grant

Reasoning

The court examined the letter of allotment and correspondence, noting the intended user was residential (hostels) for children in the integrated programme. The respondents admitted the land and buildings were not being used for that purpose, being leased to third parties instead. Proof and full import of the documents were reserved for trial, but at the interlocutory stage this sufficed as a prima facie case justifying preservation.

p. 8
02

Whether irreparable injury not compensable by damages was demonstrated

Holding

Where the act complained of may be unlawful, adequacy of damages does not fall for consideration

Reasoning

Relying on Said Ahmed v Mannasseh Denga and Section 45 of the Anti-Corruption and Economic Crimes Act, the court reasoned that where a strong case exists that the defendant's act may be unlawful, damages need not be considered; and unlawfully acquired property loses constitutional protection under Article 40 per Stanley Mombo Amuti.

p. 9
03

Whether a mandatory injunction should issue at the interlocutory stage

Holding

Refused; no compelling special circumstances, and third parties' interests would be affected

Reasoning

The court invoked Joseph Kaloki and Kenya Breweries v Okeyo: mandatory injunctions at interlocutory stage require special circumstances. Ordering respondents to vacate would effectively grant the final relief sought in the suit and would affect tenants who are not parties. The matter was therefore preserved by a status quo order instead.

p. 9
04

What orders should the court make

Holding

Status quo preserving the suit property pending full hearing, with expedition

Reasoning

Guided by Shimmers Plaza and Thugi River Estate on the meaning and specificity of status quo orders, the court found preservation of the property best served justice given the complex issues, third-party interests and the sensitive needs of visually impaired students, and directed expedition and pre-trial directions within 14 days.

p. 10

Legal principles established

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  • The balance of convenience may tilt towards preservation of suit property until final determination rather than in favour of one party
  • Constitutional protection of property does not extend to property unlawfully acquired
  • A mandatory injunction should not normally be granted at the interlocutory stage absent special circumstances

Court orders

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  1. 1.Pending hearing and final determination of the suit, the prevailing status quo in relation to the suit property planned vide Part Development Plan No. KIT/29/06/3 and letter of allotment reference 209163/A/11/51 dated 12th August 2008 be maintained; respondents to preserve the suit land as it is and not alienate, sell, charge, dispose of or waste the suit property and the structures therein
  2. 2.Hearing and final determination of the suit be expedited and heard on priority basis
  3. 3.Pre-trial directions to be taken within 14 days from delivery of the ruling
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 79
  • Constitution of Kenya, 2010Article 252
  • Constitution of Kenya, 2010Article 22(1) and (2)
  • Constitution of Kenya, 2010Article 40
  • Ethics and Anti-Corruption Act No. 2 of 2011Section 11(1)(a)(j)
  • Anti-Corruption and Economic Crimes Act (ACECA)Sections 26, 45, 55(2)
  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (21)

  • Said Ahmed v Mannasseh Denga & Another
    (2019) eKLR
  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR
  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    [2020] eKLR
  • Wreck Motors Enterprises v Commissioner of Lands
    [1997] eKLR
  • Joseph N.K Arap Ngok v Moijo ole Keiuwa & 4 others
    [1997] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
  • Ethics And Anti-Corruption Commission v Patrick Ochieno Abachi & 6 others
    [2021] eKLR
  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others
    [2015] eKLR
  • Habib Bank Ag Zurich v Eugene Marion Yakub
    CA No. 43 of 1982
  • National Bank of Kenya v Duncan Owour Shakali & Another
    CA No. 9 of 1997
  • AGIP (K) Ltd v Vora
    [2000] 2 EA 285
  • Aikman v Muchoki
    [1984] KLR 353
  • Joseph Mbugua Gichanga v Co-operative of Kenya Ltd
    [2005] eKLR
  • Stanley Mombo Amuti v Kenya Anti-Corruption Commission
    [2019] eKLR
  • Kenya Breweries Limited & another v Washington O. Okeyo
    [2002] eKLR
  • Sharifi Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    Nairobi Civil Appeal 33 of 2012, [2015] eKLR
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Ngurumann Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • American Cynanid Co. v Ethicon
    [1975] 1 All ER 504
Jurisdiction invoked
Article 79 and Article 252 of the Constitution; Section 11(1)(a)(j) of the Ethics and Anti-Corruption Act No. 2 of 2011; Section 63(c) Civil Procedure Act and Order 40 Rule 1 Civil Procedure Rules

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, "Ethics & Anti-Corruption Commission v Nzoka & another (Environment & Land Case E005 of 2022) [2023] KEELC 652 (KLR)", Case Analysis (2023). Not stated in the ruling (Notice of Motion dated 8th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/652/eng@2023-02-09

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