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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 4711 (KLR)

Gacanja v Darul Arqam Islamic Centre & 2 others (Environment & Land Case E165 of 2023) [2024] KEELC 4711 (KLR)

Environment and Land Court
10 June 2024
1,899 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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What this practically means

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Executive summary

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The Plaintiff sued over the property Nairobi/Block 23/71 (formerly LR 209/9770) and obtained injunctive orders in November 2023 against the Defendants, who occupy the neighbouring property. The Defendants then filed an application dated 4th April 2024 seeking an injunction restraining the Plaintiff from dealing with the suit property or destroying developments on it, pending completion of an alleged intended sale, or alternatively a 120-day injunction to facilitate the sale. The Plaintiff raised a preliminary objection that the Defendants' advocates were not properly on record, having failed to upload their Memorandum of Appearance, and that the application had no pleading to support it. Justice Judy Omange held that no formal notice of appointment is required for an advocate appearing from the first instance under Order 9 Rule 1 of the Civil Procedure Rules, distinguished the Newline Furniture case relied on by the Plaintiff, and dismissed the preliminary objection. On the merits, the court held that an injunction applicant must plead its full case; since the Defendants had filed no defence or counterclaim and no sale agreement was proved, no prima facie case or unmistakable right was established. However, relying on the Environment and Land Court Practice Directions and the Baobab Beach Resort authority, the court ordered maintenance of status quo - no transfer of the suit property and no new construction or demolition - pending hearing and determination of the main suit, with the matter to proceed expeditiously and costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the Defendants' application was properly on record despite failure to upload the Memorandum of Appearance

Holding

The preliminary objection failed; the anomaly had been rectified and the court should sustain rather than strike out proceedings

Reasoning

Order 9 Rule 1 CPR allows appearance by an advocate duly appointed; no formal notice of appointment is required for an advocate appearing from the first instance. Order 9 Rule 7 applies only where a party who had sued or defended in person appoints an advocate. The Newline Furniture case was distinguished because there the advocate had been directed to file a notice and failed. The omission was inadvertent and had been corrected.

p. 3
02

Whether the Defendants were entitled to an injunction based on a purchaser's interest

Holding

No injunction granted; absent pleadings and a sale agreement the Defendants had no prima facie case or unmistakable right, but status quo was ordered to preserve the subject matter

Reasoning

A party seeking an injunction must present its whole case through pleadings; the Defendants filed no defence or counterclaim and no sale agreement was proved, so no prima facie case arose. However, a live dispute over the suit property existed, and under the Environment and Land Court Practice Directions the court may order status quo, which unlike an injunction does not depend on proof of a right, to preserve the situation pending full hearing.

p. 4

Legal principles established

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  • An advocate representing a party from the first instance need not file a formal notice of appointment; Order 9 Rule 7 requiring notice applies only where an advocate takes over from a party acting in person
  • A status quo order is ancillary and does not depend on proof of a prima facie case, unlike an injunction
  • A court has a responsibility to preserve the subject matter of a dispute pending full hearing

Court orders

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  1. 1.The status quo outlined above is to be maintained pending the hearing and determination of the suit.
  2. 2.That the matter is to expeditiously proceed for hearing of the main suit.
  3. 3.Costs to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure RulesOrder 9, Rule 1
  • Civil Procedure RulesOrder 9, Rule 7

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Versus Independent Electoral and Boundaries Commission and 7 Others
  • Kenya Building, Construction, Timber & Furniture Industries Employees Union Versus Ms. Newline Furniture Ltd
    [2017] eKLR
  • Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel
    Mombasa Misc. Civil Application (JR) No.26 of 2010
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property (Nairobi/Block 23/71), with orders made under the Environment and Land Court Practice Directions

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, "Gacanja v Darul Arqam Islamic Centre & 2 others (Environment & Land Case E165 of 2023) [2024] KEELC 4711 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4711/eng@2024-06-10

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