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ELCDismissedJudicial Review application (Notice of Motion dated 3rd May, 2023) arising from ELC Suit No 830 of 2013· [2024] KEELC 4541 (KLR)

Republic & another v National Land Commission & 3 others; Acres and Homes Limited (Exparte) (Environment and Land Judicial Review Case 73 of 2015 & Environment & Land Case 830 of 2013 (Consolidated)) [2024] KEELC 4541 (KLR)

Environment and Land Court
30 May 2024
1,790 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 Acres and Homes' bid to stop Ministry of Defence construction, confirming injunctions cannot be issued against the Government in Kenya.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a notice of motion dated 3rd May, 2023 filed by the ex parte applicant, Acres and Homes Limited, in a judicial review matter concerning land parcel LR No 209/14030, Grant No IR 83237. The applicant, claiming to have purchased the property from Impulse Developers Limited for Kshs 140,000,000, sought interim injunctions restraining the Department of Defence from continuing construction on the property pending determination of ELC Suit No 830 of 2013, a site visit, and directions for that suit. The Department of Defence objected, contending the land is public land irregularly allocated, that injunctions do not lie against the Government under Order 29(2)(d) of the Civil Procedure Rules and Section 16(2) of the Government Proceedings Act, and that injunctive relief is unavailable in judicial review. Justice Judy Omange held that although conservatory orders may be available in deserving cases, the judicial review had been concluded and settled by consent adopted on 30th July 2015, and a concluded matter cannot be resuscitated for injunctive relief. On the merits, applying Giella v Cassman Brown, the applicant did not demonstrate a prima facie case addressing the public land challenge. The application was dismissed with costs, and the parties were advised to expedite the hearing of ELC Suit No 830 of 2013.

Key legal issues

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01

Whether injunctive orders can issue against the 3rd respondent in a Judicial Review application

Holding

Injunctions cannot issue against the Government under Order 29(2)(d) of the Civil Procedure Rules and Section 16(2) of the Government Proceedings Act; although conservatory orders may be available in deserving cases, the objection based on the concluded Judicial Review is valid

Reasoning

Order 29 Rule 2 exempts the Government from Order 40 (Injunctions), and Section 16(2) of the Government Proceedings Act prohibits injunctions against government officers that would give relief against the Government. The court noted conservatory orders could address this in deserving cases. However, the Judicial Review was finalized by consent adopted on 30th July 2015 and confirmed settled on 22nd October 2015, leaving no pending matter on which injunctive relief could be grounded.

p. 4
02

Whether the ex parte applicant is entitled to the injunctive orders sought

Holding

No prima facie case was demonstrated; the ownership dispute must be determined at the substantive hearing of ELC Suit No 830 of 2013

Reasoning

Applying the Giella v Cassman Brown principles, the applicant merely asserted registered ownership, having purchased the property from Impulse Developers Limited, but did not address the 3rd Respondent's contention that the land is public land irregularly transferred. Given the convoluted history of the matter, the court found the parties must be heard substantively in the pending suit before any orders are made.

p. 5

Legal principles established

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  • No injunction may be ordered against the Government under Order 40 of the Civil Procedure Rules, and Section 16(2) of the Government Proceedings Act bars injunctions whose effect would be to give relief against the Government
  • A concluded judicial review matter cannot be resuscitated to support injunctive relief relating to a different matter
  • The court may in deserving cases issue conservatory orders notwithstanding the bar on injunctions against government

Court orders

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  1. 1.The application dated 3rd May, 2023 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Civil Procedure RulesOrder 29 Rule 2(2)(d)
  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)
  • Government Proceedings Act (Cap. 40)Section 16(2)
  • Law Reform ActSections 8(1)(2)(3)(4) and 5

Cases cited (3)

  • Giella v Cassman Brown & Company Limited
    [1973] E.A. 358
  • Cortec Miningh Kenya Limited v Cabinet Secretary Attorney General & 8 others
    (2015) eKLR
  • Beatrice Nyongo Ndungu and others v Samuel K Kangoro the Attorney General and the county government of Nakuru
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the judicial review matter transferred from the High Court and ELC Suit No 830 of 2013

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, "Republic & another v National Land Commission & 3 others; Acres and Homes Limited (Exparte) (Environment and Land Judicial Review Case 73 of 2015 & Environment & Land Case 830 of 2013 (Consolidated)) [2024] KEELC 4541 (KLR)", Case Analysis (2024). Judicial Review application (Notice of Motion dated 3rd May, 2023) arising from ELC Suit No 830 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4541/eng@2024-05-30

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