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ELCAllowedNotice of Motion dated 09/02/2024· [2025] KEELC 1411 (KLR)

Shariff & 2 others v Kenya Railways (Environment & Land Case E002 of 2021) [2025] KEELC 1411 (KLR)

Environment and Land Court
20 March 2025
2,712 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Bungoma ruled that once a suit is dismissed, a defendant's conditional deposit must be released back to them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC J) determines the defendant's Notice of Motion dated 9th February 2024 seeking review and discharge of the orders in paragraph 3 of the court's ruling of 28th October 2021, under which the defendant had been directed to deposit Kshs 9,976,699 - the special damages claimed by the plaintiffs - into a joint interest-earning account in the names of both counsel as a condition of being allowed to defend the suit. The defendant complied, defended the suit, and on 6th July 2023 the plaintiffs' suit was dismissed with costs. The plaintiffs then sought interim orders in the Court of Appeal (C.A No. E087 of 2023, Kisumu) that the funds not be released; the Court of Appeal ordered only that status quo be maintained - no eviction or demolition of structures - and issued no order restraining release of the funds. The plaintiffs opposed review, arguing that status quo implicitly required preservation of the funds and that no new matter or error apparent on the record justified review. Applying Order 45 Rule 1 of the Civil Procedure Rules, the court held that the deposit orders were conditional to the defendant defending the suit and lapsed upon judgment, establishing sufficient grounds for review. The court further held that the status quo order could not be extended to fund preservation. The application was allowed: the 28th October 2021 orders were reviewed and discharged, the funds plus interest were ordered released to the defendant's KCB account, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the defendant met the Order 45 Rule 1 threshold for review of the 28/10/2021 orders

Holding

Yes - the deposit condition was conditional to the defendant defending the suit, and those conditions lapsed upon judgment, constituting sufficient reason for review.

Reasoning

The court traced the history: the deposit order of 28/10/2021 was granted as a condition allowing the defendant, which had failed to enter appearance despite proper service, to defend the suit. After the defendant complied and defended, the suit was heard and dismissed with costs on 6/7/2023. The conditional orders therefore served their purpose and lapsed, establishing 'sufficient grounds' under the third limb of Order 45 Rule 1 for review, notwithstanding no new evidence or error apparent on the record.

p. 5
02

Whether the Court of Appeal's status quo order of 8th August 2023 in C.A No. E087 of 2023 prohibits release of the funds

Holding

No - the status quo order was expressly limited to non-eviction and non-demolition; it did not restrain release of the funds.

Reasoning

The court examined the actual terms of the Court of Appeal order, which ordered maintenance of status quo in the sense that the applicants would not be evicted nor their structures demolished pending appeal. Although the plaintiffs had sought an order restraining release of the funds in their interlocutory application, no such order was issued. The court declined to imply a preservation obligation into the order, reasoning that had the Court of Appeal intended it, it would have said so expressly. Requiring the successful defendant to retain the deposit as security for the plaintiffs' appeal was held inconceivable.

Legal principles established

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  • Conditional orders requiring a defendant to deposit the claimed sum as a condition of defending a suit lapse once judgment is delivered and the suit is dismissed.
  • A status quo order means what it expressly states; courts will not read into it preservation obligations not expressly granted, especially where the party sought such an order and it was not granted.

Court orders

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  1. 1.The orders of the court contained at paragraph 3 of its ruling issued on 28th October 2021 are reviewed and/or discharged
  2. 2.Consequential upon the review and discharge, the funds deposited by the defendant being Kshs. 9,976,699 together with interest earned, held in the joint interest earning account at National Bank Eldoret Branch in the names of both counsel, to be released to the defendant's account no. 11-xxxxxx-7, Swift Code KCBBLKENX at Kenya Commercial Bank Moi Avenue Branch
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (5)

  • Patel -v- Amin
    (1987) eKLR
  • Stanbic Bank Kenya Limited -v- Kenya Revenue Authority
    (2009) eKLR
  • Nyamogo & Nyamogo -v- Kogo
  • Belgo Holdings Limited -v- Robert Kotch Otachi & Anor
    NBI High Court Suit Case NO. 454 of 2014
  • Gulam Hussein -v- Jivanji & Anor
    1929-30 KLR 44
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court that made the 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, "Shariff & 2 others v Kenya Railways (Environment & Land Case E002 of 2021) [2025] KEELC 1411 (KLR)", Case Analysis (2025). Notice of Motion dated 09/02/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1411/eng@2025-03-20

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