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ELCDismissed· [2024] KEELC 3639 (KLR)

Kamanga (Suing as the Administrator of Jacinta Wanjiru Mukonyo) v Embakasi Ranching Company Limited & 4 others (Environment & Land Case E394 of 2022) [2024] KEELC 3639 (KLR)

Environment and Land Court of Kenya
30 April 2024
3,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a landowner's attempt to change earlier orders, confirming that review applications must fit strict legal grounds.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (M.D. Mwangi, J) determined the Plaintiff's application dated 27th February 2024 seeking review, variation or setting aside of directions issued by Wabwoto J on 18th January 2024, and an order of status quo ante. The disputed directions permitted the Plaintiff to harvest the current maize crop on property LR No. Nairobi/Block 105/7708 and prohibited any further activities on it pending hearing and determination of the suit. The Plaintiff, who claimed to have occupied and farmed the property for over 27 years and to hold injunction orders of 30th January 2023 restraining interference with the property, argued that the 2024 directions contradicted the 2023 injunction. The 4th Defendant, Mary Gathoni Wainaina, who claims ownership of the property, opposed the application, asserting the Plaintiff had never been in occupation. The court framed two issues: whether the 18th January 2024 orders were amenable to review, and whether a status quo ante order should issue. On review, the court held that section 80 of the Civil Procedure Act and Order 45 Rule 1 confine review to discovery of new matter, error apparent on the face of the record, or other sufficient reason; the application alleged only a contradiction of orders and sought variation rather than review. The court found the 2024 directions complemented, not contradicted, the 2023 injunction. On status quo, the court held the existing directions already preserved the subject matter. The application was dismissed with costs to the 4th Defendant, and both sets of orders remain in force pending determination of the suit.

Key legal issues

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01

Threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application failed to meet the threshold; a claimed contradiction between orders is not a recognised ground for review

Reasoning

The court set out the grounds for review - discovery of new and important matter, error apparent on the face of the record, any other sufficient reason, and absence of unreasonable delay - and adopted principles that review is confined to the enumerated grounds. The applicant alleged only that the directions of 18th January 2024 contradicted the injunction of 30th January 2023; no new matter or error apparent was shown. The court found the 2024 directions complemented rather than contradicted the 2023 injunction.

p. 5
02

Whether the orders of 18th January 2024 contradicted the injunction orders of 30th January 2023

Holding

They did not contradict but complemented the earlier injunction orders

Reasoning

The court compared prayers 5, 6 and 7 of the application of 23rd November 2022, allowed on 30th January 2023, which restrained interference with the suit property, with the 18th January 2024 directions permitting the Plaintiff to harvest the current maize crop and prohibiting further activities. The later directions preserved the property and restricted activities, consistent with the purpose of the earlier injunction.

p. 6
03

Whether a status quo ante order should issue

Holding

No further status quo order was necessary as the 18th January 2024 directions already preserved the subject matter

Reasoning

Relying on authority on the purpose of status quo orders - preserving the subject matter, protecting parties from prejudice and assisting case management - the court found that both parties claim the property, the Plaintiff is in possession, and the Learned Judge had frozen activities on the property pending determination. The existing directions achieved the purpose of a status quo order, so no additional order was warranted.

p. 7

Legal principles established

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  • Review under section 80 of the Civil Procedure Act is confined to the grounds in Order 45 Rule 1; an application founded on alleged contradiction of orders rather than discovery of new matter, error apparent or other sufficient reason fails
  • A status quo order preserves the existing state of affairs pending determination of the dispute

Court orders

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  1. 1.The Plaintiff's application dated 27th February, 2024 is dismissed with costs to the 4th Defendant
  2. 2.The orders issued on 30th January, 2023 and those issued on the 18th January, 2024 shall remain in force pending the determination of the suit

Authorities

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Legislation

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

Cases cited (6)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
  • Republic –vs- National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • TSS Spinning & Weaving; Company Ltd –vs- NIC Bank Limited & Another
    [2020] eKLR
  • Kenya Airline Pilots Association (KALPA) vs Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Thugi River Estate Limited & another vs National Bank of Kenya Limited & 3 others
    [2015] eKLR
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, "Kamanga (Suing as the Administrator of Jacinta Wanjiru Mukonyo) v Embakasi Ranching Company Limited & 4 others (Environment & Land Case E394 of 2022) [2024] KEELC 3639 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3639/eng@2024-04-30

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