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ELCPartially AllowedPetition (application dated July 3, 2024)· [2024] KEELC 5829 (KLR)

Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 5829 (KLR)

Environment and Land Court
15 August 2024
1,992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court extended orders protecting two Diani Beach plots from eviction and demolition until the Court of Appeal rules on the dispute.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (A.E Dena J) delivered on 15 August 2024 on an application dated 3 July 2024 by Ashbrook Limited and Brookshill Limited, petitioners in an undetermined land petition against the County Government of Kwale and an interested party. Following the court's dismissal on 20 June 2024 of the petitioners' injunction application, the court had granted a 14-day status quo order solely to enable the petitioners to file an application before the Court of Appeal. The applicants sought extension of those orders (or of the interim orders of 20 June 2024 for 90 days) pending hearing of Mombasa Court of Appeal Civil Application No E072 of 2024 seeking injunction pending appeal. The respondents opposed, arguing there was nothing to stay, that the applicants were forum shopping, and that the court would be playing 'musical chairs' with the Court of Appeal. The court applied the Erinford Properties principle as adopted in Madhupaper International Limited v Kerr, holding that it had jurisdiction to grant relief to an unsuccessful interlocutory applicant pending appeal, absent frivolousness or greater hardship. Weighing the balance of convenience, it found the County's project was at a preliminary stage, the respondents held title and suffered no prejudice, and the appeal would be rendered nugatory if demolition proceeded. The court extended the status quo orders - no eviction or further transactions on LR Kwale/Diani Beach Block/1526 and 1527 - to subsist until the ruling of the Court of Appeal application, with costs of the application to be costs in the appeal.

Key legal issues

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Whether the court could extend its own status quo orders pending the hearing of an application for injunction pending appeal before the Court of Appeal

Holding

Yes. The court has inherent discretionary power to extend status quo orders it had earlier issued, and such orders do not supersede the orders of the Court of Appeal.

Reasoning

The court reasoned that it was not being asked to make orders on the application before the Court of Appeal, only to extend its own status quo orders. It applied the Erinford principle, as restated in Madhupaper, that an unsuccessful applicant for interlocutory injunction may obtain relief pending appeal. It weighed the balance of convenience - the County's project was at a preliminary stage and could await the outcome - found no prejudice to the respondents who already held title, and found the appeal would be rendered nugatory if demolition proceeded. Orders given would not supersede those of the Court of Appeal.

p. 4

Legal principles established

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  • Where a judge dismisses an application for interlocutory injunction, the court retains jurisdiction to grant the unsuccessful applicant an injunction pending appeal, unless the appeal is frivolous or greater hardship would be inflicted
  • An order maintaining status quo is meant to preserve the existing state of affairs as at the time the order is made

Court orders

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  1. 1.The status quo orders issued on the 21st February 2024 are extended; no eviction and/or further transactions on titles LR No Kwale/Diani Beach Block/1526 and LR Kwale/Diani Beach Block/1527
  2. 2.The status quo orders shall subsist until and terminate at the ruling and determination of Mombasa Court of Appeal Civil Application No E072 of 2024 Ashbrook Limited & Brookshill Limited v County Government of Kwale & others
  3. 3.The costs of the application to be costs in the appeal
Jurisdiction invoked
Inherent discretionary powers of the court; extension of interim status quo orders pending application before the Court of Appeal

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, "Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 5829 (KLR)", Case Analysis (2024). Petition (application dated July 3, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5829/eng@2024-08-15

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