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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether injunctive orders can issue against the 3rd respondent in a Judicial Review application
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
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.
Whether the ex parte applicant is entitled to the injunctive orders sought
No prima facie case was demonstrated; the ownership dispute must be determined at the substantive hearing of ELC Suit No 830 of 2013
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.
Legal principles established
#- 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
#- 1.The application dated 3rd May, 2023 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.