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ELCDismissedEnvironment & Land Case E013 of 2023· [2023] KEELC 21118 (KLR)

Doune Farm Limited v Kirui & 13 others

Environment and Land Court
31 October 2023
AOA Ombwayo
1,144 words in judgment
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The bottom line

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A Nakuru court refused to let a landowner harvest trees despite the logging ban being lifted, because another court had paused that lifting.

What this practically means

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Executive summary

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Doune Farm Limited, the registered proprietor of LR No 9045/9 Rongai Nakuru, sought review and/or variation of the court's orders of 8th May 2023, which had maintained the status quo and restrained both parties from felling or harvesting trees on the suit property pending the hearing of its suit against fourteen defendants for trespass and injunctive relief. The Applicant relied on the government's lifting of the six-year logging ban in July 2023 as new and important matter under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, citing Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, and argued that the matured exotic trees' commercial value might expire during the pendency of the suit. The Defendants filed no response despite service and no submissions were filed. Ombwayo J accepted that the lifting of the ban was undisputed new evidence arising after the ruling, but declined to exercise the review jurisdiction. The court associated itself with Angote J's interim judgment of 12th October 2023 in Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties), which held that the lifting of the logging ban ought not to proceed due to lack of public participation. Since the trees would remain intact pending determination of the suit, the Applicant would suffer no loss, and it would serve no purpose to permit harvesting for financial gain while a court of equal status had restrained the logging ban's implementation. The application dated 12th September 2023 was dismissed with no orders as to costs.

Key legal issues

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01

Whether the lifting of the government logging ban constitutes new and important matter justifying review of the status quo orders of 8th May 2023

Holding

No. Although the lifting of the ban is new evidence arising after the ruling, review was refused because a court of concurrent jurisdiction had issued an interim judgment that the lifting of the ban ought not to proceed for lack of public participation, and the Applicant would suffer no loss as the trees remain intact pending trial.

Reasoning

The court accepted the lifting of the ban as undisputed new evidence post-dating the ruling. However, it aligned itself with Angote J's interim judgment in Law Society of Kenya v Attorney General holding the lifting of the logging ban unconstitutional for want of public participation. Allowing harvesting for financial gain would be futile and the Applicant would lose nothing by maintaining the status quo.

p. 3

Legal principles established

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  • Review under Section 80 CPA and Order 45 Rule 1 may be refused where the alleged new matter (lifting of the logging ban) is subject to an interim judgment of a court of equal status restraining its implementation for lack of public participation

Court orders

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  1. 1.The application dated 12th September, 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (2)

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR

    Guidance on the court's power to grant review

  • Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties)
    (Environment & Land Petition E001 of 2023) [2023] KEELC 20583 (KLR) (12 October 2023) (Interim Judgment)

    Interim judgment that the lifting of the logging ban ought not to proceed due to lack of public participation

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Doune Farm Limited v Kirui & 13 others", Case Analysis (2023). Environment & Land Case E013 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21118/eng@2023-10-31

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