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ELCPartially AllowedEnvironment & Land Case 479 of 2012· [2023] KEELC 18869 (KLR)

Ingosi & 87 others v Kenya Forestry Services & 2 others

Environment and Land Court
12 July 2023
JOJ.M. ONYANGO
2,852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court refused to block Kenya Forestry Services from reclaiming disputed land, but gave the community 18 more months to complete its allocation.

What this practically means

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Executive summary

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This ruling by J.M. Onyango of the Environment and Land Court at Eldoret determined a Notice of Motion dated May 16, 2022 (amended October 17, 2022) by 89 plaintiffs seeking leave for incoming advocates, temporary injunctions restraining the defendants from interfering with parcel block No 7561/R, and a five-year extension of the suspension of a judgment delivered November 6, 2015. The 2015 judgment dismissed the plaintiffs' claim and allowed the 1st Defendant's counterclaim, declaring the suit property belongs to Kenya Forestry Services, but suspended the judgment for two years (later extended by two years to 2020) to allow government agencies to complete allocation of the land to the plaintiffs. The court held that its Order 40 jurisdiction to grant temporary injunctions applies pending trial, not after final judgment, and that a post-judgment injunction cannot take away the 1st Defendant's accrued rights; the injunction was therefore declined. On extension, the court found the plaintiffs had made progress - engaging the National Land Commission and Ministry of Environment, conducting environmental and social impact assessments after public participation, with reports pending Parliamentary approval - and that some remaining steps were political and beyond their control. Balancing the 1st Defendant's right to enjoy the fruits of its judgment against the interests of justice, and exercising discretion under Section 95 of the Civil Procedure Act, the court extended the suspension of the judgment for the last time for 18 months. It made no order as to costs.

Key legal issues

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01

Whether a temporary injunction can be granted after final judgment

Holding

No - the court declined to grant the injunction because judgment had already determined the rights of the parties in favour of the 1st Defendant

Reasoning

Order 40 rule 1 jurisdiction is exercised pending hearing of a suit, not after final judgment. Although Order 40 rule 2 contemplates post-judgment injunctions, such an injunction cannot take away rights accrued to a judgment holder. Granting the injunction would limit the 1st Defendant's rights under the 2015 judgment.

p. 4
02

Whether the period of suspension of the judgment should be extended

Holding

Yes - extended for the last time for 18 months, not the five years sought

Reasoning

The court has wide discretion under Section 95 of the Civil Procedure Act to enlarge time even after expiry. Plaintiffs showed progress: EIA and SIA conducted after public participation, with reports pending Parliamentary approval. Some processes are political and beyond plaintiffs' control. Balancing the 1st Defendant's right to enjoy the fruits of judgment against the interests of justice, a short extension was warranted.

p. 6

Legal principles established

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  • An Order 40 injunction cannot issue after final judgment where it would take away the rights of the party in whose favour judgment was entered
  • Under Section 95 of the Civil Procedure Act the court may enlarge a period fixed for doing an act even after the original period has expired

Court orders

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  1. 1.Application for temporary injunction declined
  2. 2.Period of suspension of the judgment extended for the last time for a period of 18 months
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 40 rule 2
  • Civil Procedure ActSection 95
  • Constitution of KenyaArticle 159(3)(d)
  • Government Lands Act
  • Gazette Notice no 145 of 1715/64
  • Legal Notice No 167August 12, 1971

Cases cited (6)

  • Gogardhan v Barsai
    AIR 1972 All 246

    Court has jurisdiction to extend time even where application is made after expiry of the time fixed

  • Charo v Mwashetani & 3 Others
    (2014) KLR

    Court's eternal mandate of responding appropriately to individual claims dictated by compelling considerations of justice

  • Alex Mrefu v Rural Electrification & 3 Others
    (2022) eKLR

    Cited by 1st Defendant on legitimate expectation

  • Communication Commission of Kenya & 4 Others v Royal Media Services Ltd & 4 Others
    (2014) eKLR

    Legitimate expectation arises when a body by representation or past practice arouses an expectation within its power to fulfil

  • Equity Bank v West Link MBO Limited
    Civil Application No 78 of 2011, [2013] eKLR

    Courts must balance competing rights and interests of different parties within the confines of the law

  • Mukenya Ndunda v Crater Automobiles Limited
    (2015) eKLR

    Courts have unfettered discretionary power to extend time and inherent jurisdiction to waive strict application of rules

Jurisdiction invoked
Order 40 of the Civil Procedure Rules and Section 95 of the Civil Procedure Act

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, "Ingosi & 87 others v Kenya Forestry Services & 2 others", Case Analysis (2023). Environment & Land Case 479 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18869/eng@2023-07-12

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