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ELCDismissedELD HCCC (as per judgment - Notice of Motion dated 19th January 2024)· [2024] KEELC 6146 (KLR)

Korir & 89 others v Makala & 20 others (Environment & Land Case 115A of 2020) [2024] KEELC 6146 (KLR)

Environment and Land Court
26 September 2024
EOE. O. Obaga
2,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret dismissed landowners' bid to block eviction, ruling it cannot overturn or pause orders issued by the High Court.

What this practically means

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Executive summary

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The Plaintiffs, asserting registered ownership and long residence on LR 8312 Nyalilbei Farm, moved the court by Notice of Motion dated 19th January 2024 seeking a permanent injunction restraining the Defendants from encroaching, trespassing or evicting them, and a stay of execution of eviction orders issued by Hon. H.A. Omondi on 23rd February 2021 in Eldoret HCCC No. 210 of 1993, which they alleged was obtained through a fraudulent consent in violation of their constitutional right to property. The 1st Defendant, through Lemaiyan Ole Kachero, opposed the application, contending that the High Court decree was validly obtained, never challenged, and that the application duplicated an earlier motion while seeking to frustrate lawful execution. The court framed two issues: whether the Plaintiffs met the requirements for a permanent injunction, and whether the ELC can stay execution of a High Court decree. It held that a permanent injunction, being perpetual and final in nature, cannot issue at an interlocutory stage before evidence is taken, as that would condemn the Defendants unheard. On stay, the court held that Order 22 Rule 25 applies only where the decree was obtained in the same court, and that the ELC, though of equal status with the High Court under Article 162(2), cannot review or interfere with its decrees. The Plaintiffs were directed to the High Court at Eldoret or an appeal. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Grant of permanent injunction at interlocutory stage

Holding

The prayer fails; a permanent injunction is a final, perpetual order granted only after hearing the suit on merit

Reasoning

The court distinguished permanent from interlocutory injunctions, relying on Giella v Cassman Brown for the triple test and Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib. Since no evidence had been taken and the ownership claims required interrogation, granting a perpetual injunction would determine the suit unheard and violate fair hearing.

p. 4
02

Jurisdiction of ELC to stay execution of a High Court decree

Holding

The ELC cannot stay execution of a decree issued by the High Court; jurisdiction to stay lies with the court that issued the decree or on appeal

Reasoning

The court considered Order 42 Rule 6 and Order 22 Rule 25 CPR. Order 22 Rule 25 contemplates a decree of the same court in which the new suit is pending. Though ELC and High Court are of equal status under Article 162(2), they are distinct courts; questioning the High Court's consent order would amount to sitting on appeal or review, which the ELC cannot do.

p. 4

Legal principles established

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  • A permanent injunction cannot be granted at an interlocutory stage; it may only issue after the suit is heard and determined on merit
  • The ELC, though of equal status with the High Court, has no jurisdiction to stay execution of or interfere with a decree issued by the High Court

Court orders

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  1. 1.The Notice of Motion dated 19th January 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3 & 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 22 Rule 25
  • Constitution of Kenya, 2010Article 162(2) and Article 40

Cases cited (10)

  • Giella v Cassman Brown Limited
    (1973) E.A. 358
  • Nguruman Limited v Jan Bonde Nielsen
    (2014) eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    Civil Appeal No. 39 of 2002
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Joseph Siro Mosioma v Housing Finance Company of Kenya Limited & 3 Others
    (2008) eKLR
  • Amir Suleiman v Amboseli Resort Limited
    (2004) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Peter Nakupang Lowar v Nautu Lowar
    (2022) eKLR
  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR
  • Isaac Kinyua & 3 others v Hellen Kaigongi
    (2018) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and the Environment and Land Court Act

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, "Korir & 89 others v Makala & 20 others (Environment & Land Case 115A of 2020) [2024] KEELC 6146 (KLR)", Case Analysis (2024). ELD HCCC (as per judgment - Notice of Motion dated 19th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6146/eng@2024-09-26

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