Eveready Security Guards Limited v Etseem Energy Limited (Environment & Land Miscellaneous Case E205 of 2022) [2024] KEELC 7205 (KLR)
The bottom line
#Kenya's High Court ordered a company evicted under flawed court orders restored to its land, ruling that uncommissioned affidavits and lack of jurisdiction made the eviction orders void.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for a mandatory injunction restoring it to the suit property
Special circumstances existed warranting restoration, since the orders under which it was evicted were a nullity - unsupported by commissioned affidavits and issued without pecuniary jurisdiction
The court found the Verifying and Supporting Affidavits underpinning the subordinate court's orders were never commissioned, hence there was no evidence supporting the Motion of 13th July 2022. Additionally, the lower court lacked pecuniary jurisdiction over land valued at Kshs. 40 Million, rendering all its orders a nullity. With no valid basis for the eviction, special circumstances justified a temporary mandatory injunction restoring the Applicant.
Whether the impugned subordinate court orders of 15th and 26th July 2022 were lawful
There was no basis for the grant of those orders because the affidavits in support were not commissioned; the orders were a nullity
Although the return of service was presumed valid since it was never challenged before the subordinate court, the affidavits supporting the Plaint and Motion were uncommissioned and therefore of no legal value. Coupled with the lower court's lack of pecuniary jurisdiction, all orders issued - including the ex-parte orders of 15th July and the inter-partes orders of 26th July 2022 - were a nullity.
Whether the Applicant established a prima facie case and irreparable injury for a temporary injunction
Yes - the Applicant's 1997 title, being first in time, prima facie prevails, and the destruction of its offices could not be adequately compensated in damages
Applying Giella v Cassman Brown and Nguruman sequentially, the court held the Applicant's 1997 certificate of title, first in time over the Respondent's 2022 title, showed an apparent infringement calling for explanation. The ongoing demolitions, destruction of the nerve center of the Applicant's operations, business disruption, loss of goodwill and displacement of personnel were losses not quantifiable in monetary terms, satisfying irreparable injury.
Legal principles established
#- A mandatory injunction at the interlocutory stage is granted only in special circumstances and clear cases, requiring a higher degree of assurance than a prohibitory injunction
- An uncommissioned affidavit has no legal value and cannot support an application
- Where there are two competing titles over the same parcel, the first in time prevails unless shown to have been unlawfully acquired
- A duly filed return of service is presumed valid unless and until it is challenged
Court orders
#- 1.A mandatory injunction restoring the Applicant into Land Reference Number 209/22665 original 209/5924, forthwith, pending the hearing and determination of the suit
- 2.A temporary injunction prohibiting any dealings by any of the parties with the title to L.R No 209/22665 original number 209/5924 - charging, leasing, selling, transferring and/or interfering with the status of the title - pending the hearing and determination of the suit
- 3.The OCS Industrial Area Police Station to ensure compliance of order (i)
- 4.The costs of the Motion to be paid by the Respondent
- Jurisdiction invoked
- Articles 165(6) and (7) of the Constitution of Kenya; Sections 3A and 18 of the Civil Procedure Act; Order 51 Rules 1-3 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eveready Security Guards Limited v Etseem Energy Limited (Environment & Land Miscellaneous Case E205 of 2022) [2024] KEELC 7205 (KLR)", Case Analysis (2024). Nairobi Commercial Courts Civil Case No. E3624 of 2022 (withdrawn to the High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7205/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.