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ELCDismissedEnvironment & Land Case E008 of 2022· [2023] KEELC 16191 (KLR)

Ikiao & another v Kamenchu

Environment and Land Court
8 March 2023
2,884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's attempt to protect tenants placed on disputed property, confirming existing court orders bind him and his agents.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru (CK Nzili, J) determined a notice of motion dated December 13, 2022 by the defendant, Zakayo Kamenchu, seeking injunctions restraining the plaintiffs from intimidating, harassing or interfering with his tenants in occupation of Plot No 92, and a preliminary objection dated the same day contending that the 2nd plaintiff was non-existent and that the plaintiffs lacked locus standi as non-registered owners. The defendant argued that the construction on Plots 133 and 134 had been completed before the ruling of November 16, 2022 and that tenants had moved in under permits issued by government agencies, and relied on the Giella v Cassman Brown injunction tests. The plaintiffs opposed, arguing the application was an attempt to re-litigate matters already determined, that the court was functus officio, and that the preliminary objection raised disputed facts contrary to Mukhisa Biscuit. The court framed three issues: res judicata, functus officio, and the merits of the preliminary objection. It held that the orders of November 18, 2022 bound the defendant, his agents and persons claiming under him; the tenants were his agents and not parties; the tenancy agreements did not predate the ruling; and the defendant, having neither appealed nor sought review, was impermissibly asking the court to sit on appeal on its own ruling and issue rival injunctions. The preliminary objection failed because its grounds required evidence. Both the application and the preliminary objection were dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the defendant's application for injunctive orders protecting his tenants was res judicata or an attempt to review the ruling of November 16, 2022

Holding

The application was an impermissible collateral attack on the subsisting orders; the defendant had not appealed or sought review, and the tenants were his agents bound by those orders

Reasoning

The orders of November 18, 2022 bound the defendant, his agents and persons claiming under him. The tenancy agreements did not predate the ruling, and no occupation licences existed by November 16, 2022. The defendant admitted restarting construction after his appeal failed. Seeking rival injunctions would make the court sit on appeal on its own ruling.

p. 4
02

Whether the court was functus officio

Holding

The functus officio objection failed; the application was not a proper vehicle to vary or discharge the injunction since no changed circumstances or inequity were shown

Reasoning

Citing St Patricks Hill School, the court acknowledged discretion to discharge or vary an injunction if unjust, but the applicant did not claim changed circumstances or that the injunction was unjust or misused; he instead admitted allowing third parties onto the property during the subsistence of valid orders.

p. 4
03

Whether the preliminary objection on the 2nd plaintiff's existence and the plaintiffs' locus standi had merits

Holding

The preliminary objection lacked merit; the grounds required evidence and the defence did not plead non-existence of the plaintiffs or the plots

Reasoning

The defence admitted the descriptive part of the plaint and did not plead non-existence of the plaintiffs or that the plots fell under a different registration mechanism. Allegations of a faceless plaintiff and imposter are factual matters requiring evidence, contrary to the Oraro v Mbaja principle.

p. 5

Legal principles established

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  • A party bound by subsisting injunctive orders cannot evade them by procuring third parties (tenants) onto the suit property and then seeking protection for them; such persons are agents bound by the orders
  • A litigant who has not appealed or sought review of a ruling cannot collaterally attack it through a fresh application seeking rival orders
  • A preliminary objection cannot rest on disputed facts requiring evidence

Court orders

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  1. 1.The application dated December 13, 2022 is dismissed
  2. 2.The preliminary objection dated December 13, 2022 is dismissed
  3. 3.Costs to the plaintiffs

Authorities

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Legislation

  • Trespass Actnot specified

Cases cited (16)

  • Giella v Cassman Brown
    (1973) E.A 358

    Tests for grant of temporary injunction

  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) KLR 125

    Definition of prima facie case

  • Samuel Karubi Njenga v Jeniffer Ngendo Waweru
    (2020) eKLR

    Irreparable loss

  • Nguruman Ltd v Jan Bonde Neilsen & 2 others
    (2014) eKLR

    Irreparable loss

  • Ann Kinyua v Nyayo Tea Zone Development Corporation & 3 others
    (2012) eKLR

    Balance of convenience

  • Housing Finance Co Ltd v Embakasi Youth Development Project
    (2004) eKLR

    Capacity to sue

  • KPLC v Benzene Holdings Ltd t/a Wyco Paints
    (2016) eKLR

    Capacity to sue

  • Alfred Njau & others v City Council of Nairobi
    (1982-1988) 1 KAR 229

    Locus standi / proper parties

  • Sheila Nkatha Muthee v Alphonce Mwangemi Munga & others
    (2016) eKLR

    Capacity to sue

  • Peter Mungai v Joseph Ngaba Kuria & another
    (2022) eKLR

    Litigation in piecemeal / attempt to re-litigate determined issues

  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1979) E.A 696

    What constitutes a preliminary objection

  • St. Patricks Hill School Ltd v Bank of Africa (K) Ltd
    (2018) eKLR

    Court's discretion to discharge, vary or set aside an injunction order

  • Eric v J. Makhokha & 4 others v Lawrence Sagini & 2 others
    Civil Application No 20 of 1994

    Equity does nothing in vain; court cannot stultify itself with unenforceable orders

  • Mobile Kitale Service Station v Mobil Oil (K) Ltd & another
    (2004) eKLR

    An injunction is a weapon to shield a party against violation of legal rights

  • Goodwill and Trust Investment Ltd and another v Witt & Bush Ltd
    as cited in Apex Finance International v KACC NKU JR 64 of 2011 (2012) eKLR

    Proper parties must be identified before an action can succeed

  • Oraro v Mbaja
    (2005) 1 KLR 141

    A preliminary objection must not deal with disputed facts

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the ruling)

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, "Ikiao & another v Kamenchu", Case Analysis (2023). Environment & Land Case E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16191/eng@2023-03-08

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