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ELCDismissedNot stated in the judgment as reproduced· [2024] KEELC 5968 (KLR)

Shitsugane v Nalanda (Environment & Land Case E008 of 2024) [2024] KEELC 5968 (KLR)

Environment and Land Court of Kenya
18 September 2024
FNF. Nyagaka
4,406 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 21/02/2024, the plaintiff, administrator of the estates of Prof. Reuben James Olembo and Prof. Norah Khadinzi Olembo, sought an order styled a 'conservatory injunction' restraining the defendant from interfering with or entering 50 acres of parcel No. LR. 9079/3 (Ndalala Plot 1B) pending hearing of the suit, plus costs. He deposed that the defendant held the land under a five-year lease expiring in December 2023, refused to vacate despite notice, and frustrated a new lease with a third party. The defendant opposed, asserting he occupied the land under a lease with the late Prof. Olembo, had paid Kshs. 3 million, had paid a further Kshs. 500,000 towards an agreed renewal, and that the orders sought would amount to eviction before trial; he filed a counterclaim for refund of monies. The court (Nyagaka J, ELC Kitale) noted that failure to cite enabling provisions was not fatal under Article 159(2)(d) and Order 51 Rule 10(2), but observed that a 'conservatory injunction' is unknown to law; the prayer was in substance a mandatory injunction. Applying Giella v Cassman Brown and the mandatory-injunction principles in Washington Okeyo and Locabail, the court found no prima facie case and no special circumstances - the defendant was in occupation with cane growing pursuant to a contested, possibly impliedly renewed, lease. The application was dismissed with costs to the respondent, with 30 days given for Order 11 compliance and a virtual mention on 05/11/2024.

Key legal issues

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01

Whether the applicant was entitled to the interlocutory order sought ('conservatory injunction')

Holding

The application was dismissed; the order sought was not known in law and in substance amounted to a mandatory injunction which the applicant had not justified

Reasoning

The court noted the prayer was a 'strange creature of law'. Read with the affidavit, it was in substance a mandatory injunction against a defendant in occupation under a contested lease. Such an order requires special circumstances and a high degree of assurance. The lease was possibly impliedly renewed by a Kshs. 500,000 payment not denied on oath, and the defendant had cane growing on the land. No prima facie case or special circumstance was established; a full trial was the proper forum.

p. 8
02

Effect of failure to cite statutory provisions in a notice of motion

Holding

Not fatal; the court must hear the application on its merits under Article 159(2)(d) and Order 51 Rule 10(2)

Reasoning

The motion cited no provision of law. The court held that while it is good practice to cite and apply relevant provisions, omission does not defeat an application because justice must be administered without undue regard to procedural technicalities, though Article 159(2)(d) is not a panacea for all procedural ills, particularly jurisdictional prerequisites.

p. 3

Legal principles established

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  • A mandatory injunction will not normally be granted at the interlocutory stage in the absence of special circumstances, and the court must feel a high sense of assurance that the injunction would be rightly granted at trial
  • A lessor who enters into a fresh lease with a third party over property before resolving a dispute with a sitting lessee cannot rely on that subsequent agreement as a special circumstance warranting a mandatory injunction
  • Failure to cite the legal provisions under which an application is brought does not render it fatally defective, given Article 159(2)(d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules
  • 'Conservatory injunction' is not a known order in law; the recognized remedies are conservatory orders, temporary/prohibitory injunctions, mandatory injunctions and Mareva injunctions

Court orders

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  1. 1.The Notice of Motion dated 21/02/2024 is dismissed with costs to the Respondent
  2. 2.Parties are given at most thirty (30) days to comply with Order 11 of the Civil Procedure Rules, 2010
  3. 3.The suit to be mentioned virtually on 05/11/2024
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application brought under unspecified provisions (none cited), court proceeding under Article 159(2)(d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules, 2010

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, "Shitsugane v Nalanda (Environment & Land Case E008 of 2024) [2024] KEELC 5968 (KLR)", Case Analysis (2024). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5968/eng@2024-09-18

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