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ELCPartially AllowedNairobi Commercial Courts Civil Case No. E3624 of 2022 (withdrawn to the High Court)· [2024] KEELC 7205 (KLR)

Eveready Security Guards Limited v Etseem Energy Limited (Environment & Land Miscellaneous Case E205 of 2022) [2024] KEELC 7205 (KLR)

High Court of Kenya
31 October 2024
5,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By an Originating Notice of Motion dated 24th September 2022 under Articles 165(6) and (7) of the Constitution, Esteem Energy Limited sought withdrawal of Nairobi Commercial Courts Civil Case No. E3624 of 2022 to the High Court and relief arising from its eviction from L.R. No. 209/5924 pursuant to orders of the Chief Magistrates Court. A ruling of 29th February 2024 granted withdrawal of the suit; this judgment determined prayer 5, seeking restoration of possession and preservation of the property. The Applicant, registered proprietor since 1997, was evicted on 5th September 2022 under orders of 15th and 26th July 2022 granted on a Motion supported by affidavits that were never commissioned, and the Respondent then commenced demolition. The Respondent opposed, alleging unsubstantiated fraud and conflicting facts. The court framed one issue: whether the Applicant met the threshold for mandatory and temporary injunctions. It held that while a return of service is presumed valid until challenged, the uncommissioned affidavits had no legal value, so there was no basis for the orders of 15th and 26th July 2022; further, the subordinate court lacked pecuniary jurisdiction, making all its orders a nullity. On the competing 1997 and 2022 titles, the first in time prima facie prevails. The demolition and business disruption constituted irreparable injury not compensable in damages. The court issued a mandatory injunction restoring the Applicant to L.R. No. 209/22665 (original 209/5924), a temporary injunction against any dealings with the title, an OCS compliance order, and costs to the Respondent, without conclusively determining proprietorship.

Key legal issues

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01

Whether the Applicant met the threshold for a mandatory injunction restoring it to the suit property

Holding

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

Reasoning

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.

p. 8
02

Whether the impugned subordinate court orders of 15th and 26th July 2022 were lawful

Holding

There was no basis for the grant of those orders because the affidavits in support were not commissioned; the orders were a nullity

Reasoning

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.

p. 7
03

Whether the Applicant established a prima facie case and irreparable injury for a temporary injunction

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 3.The OCS Industrial Area Police Station to ensure compliance of order (i)
  4. 4.The costs of the Motion to be paid by the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 165(6) and (7)
  • Civil Procedure ActSections 3A and 18
  • Civil Procedure Rules, 2010Order 51 Rules 1-3; Order 40 Rule 1
  • Land Registration ActSection 105
  • Oaths and Statutory Declarations ActSection 5

Cases cited (13)

  • Kenya Breweries Ltd & Another vs Washington O. Okeya
    [2002] eKLR
  • Locabail International Finance Ltd vs Agro Export & Another
    (1986) ALI ER 901
  • Joseph Kaloki t/a Royal Family Assembly vs Nancy Atieno Ouma
    [2020] eKLR
  • Bharat Petroleum Corp Ltd vs Haro Chand Sachdeva
    AIR 2003
  • INN vs NK
    (Civil Case 97 of 2020) [2020] KEHC 10343
  • Gideon Sitelu Konchellah vs Julius Lekakeny Ole Sunkuli & 2 Others
    [2018] eKLR
  • Z–U-DG vs SJK-U
    [2021] eKLR
  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Wreck Motors Enterprises vs The Commissioner of Lands and others
    Civil Appeal No. 71 of 1997
  • Gitwany Investment Ltd & 3 others vs Commissioner of Lands
    HCCC No 1114 of 2002
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

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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, "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.