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ELCDismissedConsolidated with ELC 1257 of 2014, ELC 252 of 2021, ELC 509 of 2014, ELC 1496 of 2013, ELC 1318 of 2013 and ELC 850 of 2014 (specific suit number not stated in judgment)· [2024] KEELC 3470 (KLR)

Omito & 680 others v Kirima & another (Environment & Land Case 337 of 2019) [2024] KEELC 3470 (KLR)

Environment and Land Court
24 April 2024
AOA. Omollo
1,554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed 545 squatters' bid to stop their eviction, confirming they are bound by the lead consolidated judgment.

What this practically means

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Executive summary

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The Applicants, 545 squatters led by Hassan Abdi Adan, filed a notice of motion dated 31st October 2023 seeking an injunction restraining the Respondents from evicting them from 65 acres they occupy within LR 6825/2 (a 472.5-acre property). The motion followed a judgment delivered on 23rd October 2023 in Nairobi ELC 1257 of 2014, the lead file of consolidated suits including this one, which ordered eviction of the Applicants from 80 hectares of the Respondents' land. The Applicants argued their suit was never fully heard as they awaited the lead judgment, and invoked the Land Act eviction procedures and UN eviction guidelines, citing Giella v Cassman Brown and related authorities. The 1st Respondent, Teresia Wairimu Kirima, opposed, contending the Applicants were in trespass, were undeserving of equitable relief having approached the court with unclean hands, and that the supporting affidavit lacked proof of the deponent's authority. A. Omollo J held that the Applicants were bound by the judgment in ELC 1257 of 2014, the lead file, since the trial court had directed one judgment to bind all consolidated parties, and counsel had acknowledged awaiting its outcome. Relying on Kennedy Mokua Ongiri v John Nyasende Mosioma on finality of judicial determinations, the court held the decree was self-executory with buy-out options, so no irreparable loss was shown. The court noted an injunction could only issue where a party intends to appeal. The motion was dismissed with no order as to costs.

Key legal issues

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01

Whether an injunction could issue against eviction ordered in a judgment by which the Applicants were bound through consolidation

Holding

The Applicants are bound by the 23rd October 2023 judgment in ELC 1257 of 2014, the lead consolidated file, and no injunction may issue to maintain status quo absent a disclosed next cause of action such as an appeal

Reasoning

The court found that counsel for the Applicants had on record acknowledged awaiting the outcome of ELC 1257 of 2014, confirming awareness of the consolidation. The lead judgment comprehensively dealt with all claims over the suit parcels and was self-executory, offering buy-out negotiation options. Injunctive relief is discretionary and requires merit and demonstrated irreparable harm; none was shown.

p. 3
02

Whether the supporting affidavit sworn by Hassan Abdi Adan was competent absent proof of authority to swear for the 545 Applicants

Holding

The Respondent contended the affidavit was incompetent for lack of attached authority; the court did not determine the application on this ground but on lack of merit

Reasoning

The 1st Respondent submitted that the deponent claimed authority for 545 Applicants but no such authority appeared on the record, citing Bishop Patrick Baligasiima v Kiiza Daniel. The court nonetheless disposed of the motion on the substantive point that the Applicants were bound by the lead judgment, dismissing the application for want of merit.

Legal principles established

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  • A decision of a court, unless set aside or quashed in a manner provided for by law, must be accepted as incontrovertibly correct and binding on parties, and a court cannot revisit its own determination merely because a party is dissatisfied

Court orders

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  1. 1.Notice of motion dated 31st October 2023 dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Not expressly stated in the judgment (Environment and Land Court, first-instance motion arising from consolidated adverse possession suits)

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, "Omito & 680 others v Kirima & another (Environment & Land Case 337 of 2019) [2024] KEELC 3470 (KLR)", Case Analysis (2024). Consolidated with ELC 1257 of 2014, ELC 252 of 2021, ELC 509 of 2014, ELC 1496 of 2013, ELC 1318 of 2013 and ELC 850 of 2014 (specific suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3470/eng@2024-04-24

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