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ELCPartially AllowedEnvironment & Land Case E097 & E122 of 2023 (Consolidated)· [2023] KEELC 18173 (KLR)

Muriuki & 4 others v Haji & 15 others

Environment and Land Court
22 June 2023
3,255 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 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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This ruling of the Environment and Land Court at Nairobi (E.K. Wabwoto, J) determined an application dated June 6, 2023 by the 2nd to 10th Defendants seeking to discharge, vary or set aside interim orders issued on June 5, 2023 that stopped further development on properties Nairobi/Block 104/525-535 pending a ruling on injunction applications in the consolidated suits. The Applicants, registered owners who purchased from the 1st Respondent, argued they held approvals from Nairobi City County, NEMA and the National Construction Authority, were incurring daily losses of about Kshs 600,000, had ordered ready-mixed concrete worth over Kshs 12 million, and that the 1st Plaintiff had failed to disclose the advanced state of the project and that the County had disowned the subdivision scheme underpinning his public-land claim. The 1st Plaintiff opposed, contending the orders preserved the property and that the manner of acquisition was questionable. The court framed a single issue: whether the Applicants met the threshold for review or variation under Order 45 of the Civil Procedure Rules. Relying on Order 45 Rules 1(1) and 3(2) and authorities on new evidence and sufficient reason, the court found the Applicants had shown new and important matter not before it on June 5, 2023, including uncontroverted losses, safety concerns and approvals. The application was partially granted: development may proceed in accordance with existing approvals conditional on depositing a Kshs 10,000,000 bank guarantee within 14 days, failing which the orders lapse; costs abide the outcome of the suit.

Key legal issues

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01

Whether the threshold for review/variation of the June 5, 2023 orders under Order 45 was met

Holding

Yes - the Applicants demonstrated new and important matter not before the court when the orders were made, including the state of the project, approvals obtained, and uncontroverted daily losses

Reasoning

The court reviewed Order 45 Rule 1(1) and 3(2) and authorities on 'sufficient reason' and new evidence. It found the suit was filed when the project had progressed substantially, the 1st Plaintiff never disclosed the current state of the project or approvals, the County had not laid claim over the properties, and the losses and safety concerns were uncontroverted. Had this information been before the court earlier, it may have decided differently.

p. 7
02

Whether the June 5, 2023 development-stopping orders should be varied

Holding

Varied conditionally - development may proceed in accordance with existing approvals subject to a Kshs 10,000,000 bank guarantee deposited within 14 days, failing which the orders lapse

Reasoning

Balancing substantive justice and the need to avoid waste of the suit properties, the court varied its orders but imposed a bank guarantee condition as security, preserving the position of the parties pending further directions and the determination of the pending injunction applications.

p. 7

Legal principles established

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  • A court may set aside or vary its own orders upon discovery of new and important matter or evidence not available when the orders were made
  • An application for review based on discovery of new matter or evidence requires strict proof that the matter was not within the applicant's knowledge or could not with due diligence have been adduced earlier

Court orders

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  1. 1.Pending further directions, the Applicants are at liberty to proceed with the project development on the suit properties Nairobi/Block/104, 525-535 in accordance with the existing development approvals on condition that they deposit a bank guarantee of Kshs 10,000,000/- within 14 days
  2. 2.In default of depositing the bank guarantee within the stated timeline, the orders shall automatically lapse
  3. 3.Parties be at liberty to apply where appropriate
  4. 4.Costs of the application to abide outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 45 Rule 3(2)
  • Constitution of KenyaArticle 62(2)
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26

Cases cited (4)

  • Giella -vs- Cassman Brown and Co. Ltd
    (1973) EA 360

    Tripartite test for temporary injunctions - prima facie case, irreparable harm, balance of convenience

  • Salama Mahmoud Saad v Kikas Investment Limited & Anor
    [2014] eKLR

    Review on discovery of new evidence requires due diligence and that the matter was not within the applicant's knowledge

  • Michael Mungai v Ford Kenya Elections & Nominations Board & Others & 2 others
    [2013] eKLR

    Five-judge bench discussion of 'sufficient reason' as a ground for review

  • Ngororo v Ndutha & Another
    [1994] KLR 402

    A non-party whose direct interest is affected by a judgment is entitled to apply for review

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; review of its own orders under Order 45 Rule 1(1) and 3(2) of the 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, "Muriuki & 4 others v Haji & 15 others", Case Analysis (2023). Environment & Land Case E097 & E122 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18173/eng@2023-06-22

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