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ELCDismissed· [2024] KEELC 4000 (KLR)

Ondiegi & another v Third Engineering Bureau China Group Company Limited & another; National Environmetal Management Authority (Interested Party) (Environment & Land Petition E005 of 2022) [2024] KEELC 4000 (KLR)

Environment and Land Court
20 May 2024
780 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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Kenya's Environment and Land Court dismissed landowners' interim water-damage request because they couldn't prove they served the application and because it sought final relief prematurely.

What this practically means

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Executive summary

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The three petitioners, joint and neighbouring registered owners of parcels East Kasipul/kojwach Kamioro/2793, /3031 and /3030 adjacent to the Isebania-Kisii-Ahero road, filed a Notice of motion dated 11th May 2022 in a constitutional petition. They alleged that in 2017 the 1st Respondent was contracted by the 2nd Respondent under contract number KENHA/RD/D&C/2118/2017 to improve the road, and that through negligent, substandard workmanship the respondents constructed a culvert at Ringa that channels roadside water into their properties, depositing sand and rocks and washing away loamy soil and fertility. They sought an interlocutory order directing the respondents to redirect the flow of roadside water away from their properties pending hearing and determination of the petition, plus costs. The 2nd Respondent was served; the 1st Respondent was served by substituted newspaper advertisement with leave of the court granted on 20th June 2023. The court directed that the application be served on the respondents and interested party and heard by written submissions. Dismissing the motion, the court held that the applicants failed to demonstrate service in compliance with the orders of 21st September 2022 and 8th June 2023, citing Ogada-vs-Mollin (2009) eKLR. It further observed that the principal order sought mirrored the final mandamus order sought in the petition, and, applying Peter Kasimba & 219 others-vs-Kwetu Savings and Credit Co-operative Society Ltd & 11 others (2020) eKLR, held that an interlocutory court cannot decide relevant facts with finality. The application was dismissed with costs to abide the outcome of the petition. Judgment delivered at Homa Bay on 20th May 2024 by G.M.A Ong'ondo, Judge.

Key legal issues

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01

Whether the interlocutory application was properly served as directed by the court

Holding

The application was dismissed partly because the applicants failed to demonstrate compliance with the court's service directions

Reasoning

On 21st September 2022 the court directed service of the application on the respondents and interested party, and on 8th June 2023 further directions on service were given. The applicants produced no evidence of compliance with these directions, and the court invoked Ogada-vs-Mollin (2009) eKLR in concluding that the applicants had failed to demonstrate service.

p. 3
02

Whether an interlocutory application may seek relief that mirrors a final order in the petition

Holding

An interlocutory court cannot grant relief that would amount to deciding with finality the facts urged by the parties; the principal order sought here mirrored the final mandamus order sought in the petition

Reasoning

The court noted the puzzle that the principal order sought in the motion was similar to a final order of mandamus sought in the petition. Relying on Peter Kasimba & 219 others-vs-Kwetu Savings and Credit Co-operative Society Ltd & 11 others (2020) eKLR, the court applied the principle that at an interlocutory stage the court is forbidden from deciding relevant facts with finality. The application therefore lacked merit.

p. 3

Legal principles established

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  • At an interlocutory stage the court is forbidden from purporting to decide with finality the relevant facts urged by the parties
  • An applicant seeking interlocutory relief must demonstrate that the application was served as directed by the court

Court orders

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  1. 1.The application dated 11th May 2022 be and is hereby dismissed
  2. 2.Costs of the application to abide the outcome of the petition

Authorities

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Legislation

  • Constitution of Kenya2010 (rights enforcement, as invoked by petitioners)

Cases cited (2)

  • Ogada-vs-Mollin
    (2009) eKLR
  • Peter Kasimba & 219 others-vs-Kwetu Savings and Credit Co-operative Society Ltd & 11 others
    (2020) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - enforcement of individual and collective rights under the Constitution; originating petition filed in the Environment and Land Court

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, "Ondiegi & another v Third Engineering Bureau China Group Company Limited & another; National Environmetal Management Authority (Interested Party) (Environment & Land Petition E005 of 2022) [2024] KEELC 4000 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4000/eng@2024-05-20

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