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ELCDismissedNot stated in the judgment (suit dated 8/3/2024)

Omari (On his own behalf and that of the Kisii Community at Kiabiraa) & 2 others v County Government Nyamira County & another (Environment & Land Case E004 of 2024) [2024] KEELC 7110 (KLR)

Environment and Land Court
24 October 2024
2,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nyamira refused to immediately re-open a disputed quarry, instead freezing it for everyone until the full case is heard.

What this practically means

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Executive summary

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This is an interlocutory ruling by Mugo Kamau, Judge, in a suit dated 8/3/2024 in which the Plaintiffs, claiming on their own behalf and on behalf of the Kisii Community at Kiabiraa, sued the County Government of Nyamira and its CEC Member for Mining. They sought declarations that L.R No. CentralKitutu/Mwabundusi/559 Kiabiraa Livingstone Factory is community land, that the Defendants' claim is unfounded, permanent restraints against interference, re-opening of the quarry, general damages and costs. The Defendants denied the claim, asserted the parcel was subdivided in 2015 into parcels 2177 (owned by the County) and 2178 (owned by the SDA Church), counter-claimed under Article 62(1)(f) and Section 6 of the Mining Act that all minerals comprise public land, and relied on NEMA suspension orders against quarrying. The Plaintiffs' contemporaneous Motion sought mandatory interlocutory orders for immediate re-opening of the quarry and restraints against the Defendants. The court held the relief sought was mandatory rather than prohibitory, since it would alter the status quo, and that a higher standard applies to such applications. Applying Locabail, Sharifi Abdi Hassan and Kenya Breweries v Okeyo, the court found no special circumstances or clear case, noted the competing ownership claims, and warned that minerals could be irreversibly harvested if the injunction issued wrongly. The application was refused, but the court ordered preservation of the quarry against all parties until hearing and final determination of the suit or further orders. No costs order was made in the ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a mandatory interlocutory injunction should issue re-opening the quarry and restraining interference with L.R No. CentralKitutu/Mwabundusi/559 Kiabiraa Livingstone Factory
  2. 2.Whether special circumstances or a clear case exist warranting a mandatory injunction at the interlocutory stage

Key legal issues

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01

Nature of mandatory versus prohibitory interlocutory injunctions

Holding

An injunction is mandatory if its effect is to alter the status quo by compelling affirmative action, regardless of its wording; the Applicants' prayer for re-opening of the quarry is mandatory in nature

Reasoning

The court applied California authorities (Stewart v Superior Court; Johnston v Superior Court) and local precedent to hold that substance, not form, determines the character of an injunction. Requiring the Defendants to re-open the quarry would force a change in the parties' status and is therefore mandatory, attracting a higher threshold.

p. 5
02

Whether a mandatory interlocutory injunction should be granted

Holding

Refused; special circumstances and a clear case are absent, and the competing claims require full trial

Reasoning

There are competing claims over ownership of the parcel, the Plaintiffs themselves do not claim ownership, and granting the order would risk irreversible depletion of the minerals before trial. The court instead preserved the substratum of the suit pending full hearing.

p. 6

Legal principles established

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  • A higher standard applies to interlocutory mandatory injunctions than to prohibitory ones; in the absence of special circumstances and a clear case, they will not be granted

Court orders

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  1. 1.The quarry situate at the parcel of land known as L.R NO. CentralKitutu/Mwabundusi/559 Kiabiraa Livingstone Factory shall be preserved against all the parties herein until the Hearing and final determination of this Suit or until further Orders of the Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over land, environment and mining disputes (constitutional provisions cited: Articles 40, 62(1)(f) and 63 of the Constitution of Kenya, 2010)

Relief refused

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Mandatory interlocutory injunction for immediate re-opening of the quarry/mining site and restraints against the Defendants

No special circumstances or clear case established; a higher standard than for prohibitory injunctions applies and the competing claims require full trial

p. 6

Costs

No costs order made in the ruling

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the substratum, the quarry situate at the parcel of land known as L.R NO. CentralKitutu/Mwabundusi/559 Kiabiraa Livingstone Factory shall be preserved against all the parties herein until the Hearing and final determination of this Suit or until further Orders of the Court. And it is hereby so ordered.
p. 6Final order - preservation of the quarry/subject matter pending trial
I am not convinced that special circumstances exist in this matter that may warrant the grant of a mandatory injunction at this stage.
p. 6Refusal of mandatory interlocutory injunction
A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases
p. 6Test for mandatory interlocutory injunctions (as stated in Locabail, quoted with approval)

Issues in the judgment

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minor

Slight contradiction: paragraph 8 states the interim injunction sought is mandatory in nature but paragraph 14 asserts the Plaintiffs do not claim ownership, whereas the Plaint seeks a declaration that the property is community land

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, "Omari (On his own behalf and that of the Kisii Community at Kiabiraa) & 2 others v County Government Nyamira County & another (Environment & Land Case E004 of 2024) [2024] KEELC 7110 (KLR)", Case Analysis (2024). Not stated in the judgment (suit dated 8/3/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7110/eng@2024-10-24

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