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ELCDismissedELC Suit No 830 of 2013 (Judicial Review application dated 3rd May 2023)· [2024] KEELC 5168 (KLR)

Republic & another v National Land Commission & 3 others; Acres and Homes Limited (Exparte) (Environment and Land Judicial Review Case 73 of 2015 & Civil Case 830 of 2013 (Consolidated)) [2024] KEELC 5168 (KLR)

Environment and Land Court
30 May 2024
JOJudy Omange
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi landowner lost its bid to stop Defence construction on disputed land because it tried to revive an already settled case instead of pushing its live lawsuit.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Judy Omange, J) determined a notice of application dated 3rd May 2023 filed by the ex parte applicant, Acres and Homes Limited, in proceedings concerning land LR No 209/14030, Grant No. I.R 83237. The applicant claimed to be the registered owner, having purchased the property from Impulse Developers Limited for Kshs. 140,000,000, and alleged that the Department of Defence forcefully ejected it in 2013, fenced the property, and commenced construction. It sought interim injunctions restraining continued construction pending hearing of ELC Suit No 830 of 2013 (its trespass suit against the Attorney General), a site visit, and directions for hearing. The 3rd Respondent opposed through a replying affidavit of Major Julius Meso, contending that the land was public land irregularly and fraudulently allocated, that injunctions cannot issue against government under Order 29(2)(d) of the Civil Procedure Rules and Section 16(2) of the Government Proceedings Act, and that the court lacked jurisdiction to grant injunctions in a concluded Judicial Review application. The court agreed that the application was improperly brought: the Judicial Review had been settled by consent adopted on 30th July 2015 and confirmed settled on 22nd October 2015, so it could not be revived to seek injunctive orders. On the merits, applying Giella v Cassman Brown, the applicant failed to demonstrate a prima facie case, having not addressed the public-land allegations. The application was dismissed with costs, and the parties advised to expeditiously prepare ELC Suit No 830 of 2013 for hearing.

Key legal issues

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01

Whether injunctive orders lie against the government in a Judicial Review application

Holding

The application in the Judicial Review was validly objected to because the JR was concluded and settled; and Order 29(2)(d) CPR and Section 16(2) of the Government Proceedings Act bar injunctions against government, though conservatory orders may be issued in deserving cases

Reasoning

The court analysed Order 29 Rule 2 of the Civil Procedure Rules and Section 16(2) of the Government Proceedings Act, which exempt government from injunctions. It accepted the objection that the application was improperly filed in a concluded Judicial Review, since the consent of 30th July 2015 had settled it and ELC 830 of 2013 remained the live suit.

p. 4
02

Whether the ex parte applicant was entitled to interlocutory injunctive relief

Holding

No - the applicant did not establish a prima facie case with a probability of success; ownership disputes must be resolved at the substantive hearing of ELC Suit No 830 of 2013

Reasoning

Applying the Giella v Cassman Brown principles, the court noted the applicant relied only on its registration as owner without addressing the 3rd Respondent's claim that the land was public land irregularly allocated. Given the long history of the matter, the court found substantive hearing of the pending suit necessary before any orders could issue.

p. 5

Legal principles established

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  • In a concluded Judicial Review matter, an applicant cannot resuscitate it to seek injunctive orders concerning a different, unresolved suit
  • While Order 29(2)(d) CPR and Section 16(2) Government Proceedings Act bar injunctions against government, the court can in deserving cases issue conservatory orders to overcome that obstacle

Court orders

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  1. 1.The application dated 3rd May 2023 is dismissed with costs
  2. 2.The parties are advised to expeditiously prepare for hearing of ELC 830 of 2013

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Civil Procedure RulesOrder 29 Rule 2(2)(d); Order 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)

  • Cortec Miningh Kenya Limited Vs Cabinet Secretary Attorney General & 8 others
    (2015) eKLR
  • Beatrice Nyongo Ndungu and others Vs Samuel K Kangoro the Attorney General and the County Government of Nakuru
  • Giella Vs Cassman Brown & Company Limited
    [1973] E.A. 358
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (implied by transfer of Judicial Review matter to the ELC); Civil Procedure Rules and Law Reform Act provisions invoked by parties

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 & Civil Case 830 of 2013 (Consolidated)) [2024] KEELC 5168 (KLR)", Case Analysis (2024). ELC Suit No 830 of 2013 (Judicial Review application dated 3rd May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5168/eng@2024-05-30

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