Runda & another v County Director of Physical Planning & another (Environment and Land Judicial Review Case E004 of 2023) [2024] KEELC 5010 (KLR)
The bottom line
#Mombasa's Environment and Land Court temporarily stopped Mombasa County from evicting a Kizingo plot holder, but refused to pause the related criminal case.
What this practically means
#Executive summary
#Key legal issues
#Whether a temporary injunction could issue restraining the County Government from interfering with Plot No. XXVI/187 Kizingo pending judicial review
Yes. The Applicants demonstrated a prima facie case through occupational permits which the Respondents left uncontested, demonstrated potential irreparable loss through the vacation and enforcement notices and the arrest of an employee for a collateral purpose, and the balance of convenience favoured them since a lower risk of injustice lay in granting the injunction.
The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited. It noted the Respondents did not respond to the application so the claims were uncontested. It found the three-day vacation notice and enforcement notice, together with the arrest of the Applicant's employee on a charge related to works done by a sub-contractor, showed a collateral purpose amounting to irreparable harm. It concluded the properties were in danger of being dealt with as feared and the criteria for a temporary injunction were met.
Whether the criminal proceedings in County Court Case MCCGCRR/EO77/2023 should be stayed pending the judicial review
No. Section 193A of the Criminal Procedure Code permits concurrent proceedings, and stay of criminal proceedings is a grave step granted only in exceptional circumstances which were not demonstrated here.
The court held the criminal case and the judicial review suit share similar facts, but a pending civil case is not a bar to criminal proceedings. A stay requires demonstration of bad faith, abuse of process or violation of rights. The court reasoned that if the judicial review ultimately succeeded the criminal case would effectively terminate, and if it failed a similar criminal case could be re-instituted, so either way the parties would end in the same position; the circumstances were not exceptional and compelling.
Whether the ex-parte orders of 27th October 2023 should be set aside under Order 40 Rule 7
No. The prayer was dismissed as overtaken by events because the orders were to last until determination of the injunctive application, which the court had now determined by granting the injunction.
The court noted Order 40 Rule 7 permits discharge or variation of an injunction on application by any dissatisfied party. It traced the ex-parte orders to their purpose, namely to preserve the position pending the inter partes hearing of the injunctive application. Having now determined that application on its merits and issued interim injunctions, there was nothing left to set aside. The Respondents' application was therefore unmerited and dismissed.
Whether County Governments are shielded from injunctions under Section 16 of the Government Proceedings Act
No, following James Muigai Thungu v County Government of Trans-Nzoia, County Governments do not enjoy the protection of the Government Proceedings Act against injunctions.
The Respondents had argued the injunctive orders were inconsistent with Section 16 of the Government Proceedings Act which forbids injunctions against the Government. Counsel relied on authority holding that there is no provision in the County Government Act protecting county governments from injunction orders, and the Government Proceedings Act would have been amended if the legislature intended counties to enjoy that status. The court did not disturb that position, and the injunction was granted against the Respondents.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury not compensable in damages, and, if in doubt, show the balance of convenience lies in his favour, applying the three conditions sequentially as distinct hurdles
- Concurrent criminal and civil proceedings are permitted under Section 193A of the Criminal Procedure Code, and a stay of criminal proceedings is granted only in exceptional circumstances such as abuse of process or infringement of rights
- Any injunction order may be discharged, varied or set aside on application by a dissatisfied party under Order 40 Rule 7 of the Civil Procedure Rules
- In considering interlocutory injunctive reliefs the court should opt for the lower rather than the higher risk of injustice
Court orders
#- 1.The Chamber summons dated 25th October, 2023 found merited on prayers 4 and 5 which can be granted on the interim
- 2.The Notice of Motion application dated 31st October, 2023 dismissed with costs in the cause
- 3.The Notice of Motion application dated 2nd November, 2023 dismissed with costs in the cause
- 4.An order of temporary injunction restraining the Respondents, their servants or agents from trespassing, evicting, leasing or interfering with the Applicant's quiet possession of plot no XXVI/187 Kizingo until the hearing of the application for judicial review or further orders
- 5.An order of temporary injunction restraining the Respondents, their servants or agents from harassing and/or intimidating the Applicants and/or their servants or agents in connection with activities around Plot No. XXVI/187 Kizingo until the hearing of the application for judicial review or further orders
- 6.Parties to dispose of the suit within 180 days, with mention on 16th September 2024 for compliance and further directions
- 7.Costs of the three applications to be in the cause
- Jurisdiction invoked
- Section 8(2) of the Law Reform Act, Cap. 26 and Order 53 of the Civil Procedure Rules, 2010 (judicial review jurisdiction of the High Court/ELC); Articles 47, 48, 50 and 176 of the Constitution invoked by the Respondents' application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Runda & another v County Director of Physical Planning & another (Environment and Land Judicial Review Case E004 of 2023) [2024] KEELC 5010 (KLR)", Case Analysis (2024). ELC JR No. E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5010/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.