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ELCPartially AllowedEnvironment & Land Case E019 of 2023· [2024] KEELC 6117 (KLR)

Kemei v Keronei & 4 others (Environment & Land Case E019 of 2023) [2024] KEELC 6117 (KLR)

Environment and Land Court (inferred from subject matter and registry; not expressly named in the judgment)
24 September 2024
2,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 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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The Defendants/Applicants, represented by the 4th Defendant Peter Kipchirchir Sego, moved the court by Notice of Motion dated 24th May, 2024 seeking to set aside or vary the order issued on 20th April, 2023 (a temporary injunction restraining them from interfering with the Plaintifi's 8.5-Acre portion of Kapsaret/Simat Block 2(Simat)/49) and to substitute it with a status quo order pending the hearing of the suit. They claimed non-service of the application and the order bearing the hearing date, and alleged the order was obtained fraudulently and, if enforced, would amount to eviction. The Plaintifi opposed, asserting service, appearance by the Defendants on 6th April, 2023, and that the order sought to be set aside was in substance already a status quo order preserving the 2 acres she had assigned to each Defendant. The court framed a single issue: whether the order of 20th April, 2023 should be set aside or varied. Treating the motion as one for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1), the court found no proof of fraud and no error on the face of the record, but found there was no return of service of the ex-parte order endorsing the hearing date, making non-service a plausible 'sufficient reason' for review. Exercising its discretion under Section 63(e) of the Civil Procedure Act, and heeding Thugi River Estate that status quo orders must not be made in a vacuum, the court allowed the application, set aside the effect of the impugned order and issued a defined status quo order: the Defendants remain on their assigned 2-Acre portions; the Plaintifi retains exclusive possession of the remaining 8.5 Acres, free from interference; and costs were reserved to the cause. Judgment delivered at Eldoret on 24th September, 2024 by J.M. Onyango J.

Key legal issues

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01

Whether the impugned order of 20th April, 2023 should be set aside and/or varied on review

Holding

The application was allowed as a review for 'any other sufficient reason', being the plausible non-service of the application and the order bearing the inter partes hearing date

Reasoning

The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1(1). Although the Defendants did not establish error on the face of the record or discovery of new matter, non-service was held to be a sufficient reason. The file showed no return of service of the ex-parte order endorsing the hearing date; the only affidavit of service on record postdated the order. Non-service was therefore plausible and constituted sufficient reason for review.

p. 5
02

Whether an order of status quo should issue pending hearing and determination of the suit

Holding

A defined status quo order was issued under Section 63(e) of the Civil Procedure Act, preserving each party's occupation as at commencement of the suit

Reasoning

Relying on Section 63(e) permitting just and convenient interlocutory orders, and guided by Thugi River Estate on the need for clear description of the status quo, the court recorded the agreed position: Defendants remain on their assigned 2-Acre portions each, while the Plaintifi retains exclusive possession of the remaining 8.5 Acres, with Defendants restrained from interfering with it.

p. 5
03

Whether the order was obtained by fraud

Holding

The allegation of fraud was not proved

Reasoning

The Defendants alleged in their Supporting Affidavit that the order of 20th April, 2023 was obtained fraudulently, but no evidence of fraud was presented to the court; the allegation therefore failed and the review succeeded instead on the ground of non-service as sufficient reason.

p. 5

Legal principles established

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  • The court has an unfettered discretion to review its own decrees or orders for any sufficient reason
  • Knowledge of the existence of a suit and service of summonses does not amount to proper service of an order bearing the hearing date of an application
  • Status quo orders must not be made in a vacuum; the status quo to be maintained must be clearly described

Court orders

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  1. 1.An order for status quo that the status quo prevailing at the commencement of the suit be maintained on the suit property pending hearing and determination of the suit
  2. 2.The Defendants to continue to remain on, cultivate and otherwise utilize the 2-Acre portions assigned to them by the Plaintifi prior to the institution of the suit
  3. 3.The Plaintifi to retain exclusive possession and use of the remaining 8.5-Acre portion which she is at liberty to cultivate
  4. 4.The Defendants restrained from trespassing, encroaching onto or otherwise interfering with the Plaintifi's use and enjoyment of the 8.5-Acre portion during the pendency of the suit
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (7)

  • Tatecho Housing & Cooperative Sacco Society Limited v Quetun Sacco Ltd (2021) eKLR
    (2021) eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others (2009) eKLR
    (2009) eKLR
  • Ashmore v Corp of Lloyds (1992) 2 All ER 486
    (1992) 2 All ER 486
  • Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR
    [2018] eKLR
  • Shanzu Investments Limited v Commissioner for Lands (1993) eKLR
    (1993) eKLR
  • Wangechi Kimita & Another v Mutahi Wakabiru CA No 80 of 1985 (unreported)
    CA No 80 of 1985 (unreported)
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others (2015) eKLR
    (2015) eKLR
Jurisdiction invoked
Section 63(e) and Section 80 of the Civil Procedure Act; Order 45 of the Civil Procedure Rules (review of the court's own interlocutory order)

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, "Kemei v Keronei & 4 others (Environment & Land Case E019 of 2023) [2024] KEELC 6117 (KLR)", Case Analysis (2024). Environment & Land Case E019 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6117/eng@2024-09-24

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