Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 4862 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court, having delivered judgment on 3/5/2023, is functus officio and lacks jurisdiction to grant the orders sought in the two applications
- 2.Whether the application dated 21/2/2024 seeking temporary injunction under Sections 152E and 152F of the Land Act can stand within these proceedings
- 3.Whether this court can grant an injunction pending appeal where the applicants have already moved the Court of Appeal
- 4.Whether the Respondents are in contempt of the court orders issued on 26/2/2024
Key legal issues
#Functus officio and jurisdiction
The court is not functus officio merely because the law permits review applications
The Respondents and Interested Party argued the court had exhausted its jurisdiction after the 3/5/2023 judgment. The court held that the very availability of review applications shows a court is not functus officio, but that this did not save the applications, which failed on other grounds including the applicants' submission to the Court of Appeal's jurisdiction.
Application under Sections 152E and 152F of the Land Act
The application cannot stand because the eviction notice was issued pursuant to a decree of the court, not in fresh proceedings
Section 152F gives evictees relief against notices under Section 152E, but the court reasoned that these provisions target situations where there is no suit and fresh proceedings would commence. A notice issued in execution of a decree falls outside them, so the application anchored on them, filed within these proceedings, could not stand.
Injunction pending appeal
The court cannot entertain the injunction where the applicants have already moved the Court of Appeal
The applicants had lodged an injunction application in the Court of Appeal dated 20/2/24. The court held that having submitted to that jurisdiction, this court could not entertain the parallel application. The court noted it could grant a temporary injunction pending appeal only when exercising appellate jurisdiction under Order 42 Rule 6(6), which was not the case here as it sat as the court issuing the decree.
Contempt of court
Contempt not proved; the Respondents complied once served and the standard of proof is higher than in ordinary civil cases
Applying the Mweru and Issenberg tests, the court found the injunction orders were issued on 26/2/24, after the survey had begun, and no evidence proved continued occupation or that the demolitions were undertaken by the County. The systematic removal of fittings suggested caretakers, not the County, and the higher burden of proof in contempt was not discharged.
Legal principles established
#- A court that has determined a suit on merit is not functus officio where the law allows it to be approached for review, but cannot entertain injunctions pending appeal once parties have submitted to the appellate court's jurisdiction
- Civil contempt requires proof of the terms of the order, knowledge of the terms by the respondent, and breach of the order, to a standard higher than the ordinary civil standard
- Sections 152E and 152F of the Land Act apply where there is no suit; they do not cover eviction notices issued pursuant to a court decree
Court orders
#- 1.The applications dated 21/2/2024 and 1/3/2024 are hereby dismissed
- 2.The applications collapse with the orders of the court issued on 26/2/2024
- 3.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; contempt jurisdiction under Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court Act
Relief refused
#Temporary injunction restraining the 1st Respondent from evicting, entering, demolishing or interfering with LR No Kwale/Diani Beach Block/1526 and 1527 pending the Court of Appeal application
Sections 152E/152F of the Land Act did not envisage notices issued pursuant to a court decree, and the applicants had already submitted to the jurisdiction of the Court of Appeal
Orders of contempt including debartment of audience, summonses, warrants of arrest and custodial sentences against the County Secretary and CECM for Environment
Petitioners failed to prove, to the higher standard required, that the Respondents breached the orders after service or carried out the demolitions
Costs
There shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the applications dated 21/2/2024 and 1/3/2024 are hereby dismissed. For the avoidance of doubt the same collapse with the orders of the court issued on 26/2/2024. There shall be no orders as to costs.
Having submitted themselves to the jurisdiction of the Court of Appeal then clearly this Court cannot entertain the application before it. My hands are tied and I must not progress.
it is my view the said provisions did not envisage circumstances where notice would be issued pursuant to a court decision.
Based on the foregoing this court is inclined to giving the 1st Respondent a benefit of doubt.
The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance
Issues in the judgment
#The coram lists counsel as 'Mr. Andiwo for the Applicant/Petitioner' while the submissions section records 'Mr. Mwangi represented the applicants', suggesting an inconsistency in counsel names
The CECM's name appears variously as 'Saumu Beja Mahaja' and 'Saumu Beja Mwahaja' within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 4862 (KLR)", Case Analysis (2024). Not stated in judgment (Petition; applications dated 21/2/2024 and 1/3/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4862/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.