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ELCPartially AllowedNot stated in the judgment extract· [2025] KEELC 5017 (KLR)

Kamichar & 7 others v Delmonte Kenya Limited; Directorate of Criminal Services & 2 others (Interested Parties) (Environment & Land Case E022 of 2025) [2025] KEELC 5017 (KLR)

Environment and Land Court
30 June 2025
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped all quarrying on disputed land until ownership is settled, after finding the plaintiffs never properly served the defendant company.

What this practically means

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Executive summary

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The Defendant's notice of motion dated 24-2-2025 sought an interlocutory injunction restraining the Plaintiffs from quarrying, drilling, blasting and tree felling on L.R. No. 12157/10 in Ithanga-Kakuzi Subcounty, setting aside ex parte orders issued by Lady Justice J.M. Onyango on 6th February 2025, an environmental preservation order, cross-examination of the Plaintiffs' process server, and police enforcement. The Defendant, the registered owner of the suit land, alleged unlawful trespass and quarrying by the Plaintiffs, who claimed eight unsurveyed commercial plots in Thika Municipality allotted in 1998, held quarrying permits, and asserted that substituted service had been court-authorized. The court found service improper, noting the disputed and allegedly forged stamp and signature on the mention notice and non-compliance with Order 5 rules 3 and 8 on service of companies. It found it premature to determine the Plaintiffs' legitimate interest, the trespass question, compliance with quarrying permits, or territorial jurisdiction, since these turn on whether the Thika plots and the suit land are one and the same, an issue requiring full trial. Applying Giella v Cassman Brown, the court held it too early to find a prima facie case, but ruled that continued quarrying risked irreparable harm should the land belong to the Defendant, and that quarrying should cease pending resolution of the ownership dispute. The court allowed the motion in terms of prayers 4, 5, 7 and 9, and ordered costs in the cause.

Key legal issues

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01

Proper service on the Defendant company

Holding

Service was not properly effected; the stamp and signature on the mention notice were disputed and appeared different from the Defendant's legal officer's signature

Reasoning

Order 5 rules 3 and 8 require personal service on a company through its Secretary, Director or Principal Officers. The Defendant vehemently disputed the stamp and signature on the mention notice, alleging forgery, and the signature differed from that in the legal officer's affidavits. The court was therefore not convinced service was proper, justifying setting aside the ex parte orders.

p. 4
02

Threshold for interlocutory injunction over the disputed land

Holding

With pleadings not closed it was too early to establish a prima facie case, but continued quarrying would cause irreversible harm if the land belongs to the Defendant; a preservation-type injunction was warranted

Reasoning

Applying Giella v Cassman Brown, the court found it premature to determine a prima facie case before closure of pleadings. However, allowing quarrying to continue risked mining on land that may belong to the Defendant, a harm not compensable in damages. Preservation of the disputed land pending ownership determination was the prudent course.

p. 4
03

Territorial jurisdiction

Holding

Jurisdiction depends on whether the Plaintiffs' parcels lie in Kiambu or Murang'a County; the precise location remains contentious and was not determined

Reasoning

Under Section 12 of the Civil Procedure Act, suits for recovery of immovable property must be instituted where the subject matter is situated. If the Plaintiffs' land is in Kiambu County, ELC Thika has jurisdiction; only if it is within Murang'a County does this court have jurisdiction. The location remained disputed at this interlocutory stage.

p. 4
04

Whether the two parcels are one and the same / trespass

Holding

Premature; determinable only after hearing all evidence on whether L.R. 12157/10 is distinct from the Plaintiffs' unsurveyed Thika plots

Reasoning

The court held that whether there is trespass depends on whether the Plaintiffs' land is embedded in the Defendant's land. Since this is not yet clear at the interlocutory stage, with the defence not filed and interested parties seeking joinder, the legitimacy of the Plaintiffs' claim and the trespass question must await full trial.

p. 4

Legal principles established

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  • For an interlocutory injunction a party must show a prima facie case with a probability of success, irreparable loss not compensable by damages, and failing which the balance of convenience is considered
  • Pending resolution of an ownership dispute, the disputed land should be preserved from quarrying so that it remains available to the lawful owner
  • Service on a company must be effected on its Secretary, Director or other Principal Officers under Order 5 rules 3 and 8 of the Civil Procedure Rules

Court orders

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  1. 1.An injunction restraining the Plaintiffs, their agents and any person claiming under them from entering, occupying, using, carrying out rock drilling, rock blasting, rock extraction, tree felling or quarry mining operations on L.R. No. 12157/10, or interfering with the Defendant's quiet possession, pending hearing and determination of the suit
  2. 2.Setting aside of the order given by Lady Justice J.M. Onyango on 6th February 2025 and issued on 10th February 2025 in its entirety
  3. 3.An environmental preservation order prohibiting further environmental degradation of the suit property
  4. 4.Summoning of the Plaintiffs' process server, Mr. Amos Chege Kanoga, for cross-examination
  5. 5.The Officer Commanding Station (OCS), Ngati Police Station, to enforce the orders
  6. 6.Costs in the cause
  7. 7.No quarrying on the disputed land until the ownership dispute is resolved
Jurisdiction invoked
Article 159 of the Constitution; Sections 3 and 13(7)(a) of the Environment and Land Court Act (Act No. 19 of 2011); Sections 1A, 1B, 3A and 63 of the Civil Procedure 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, "Kamichar & 7 others v Delmonte Kenya Limited; Directorate of Criminal Services & 2 others (Interested Parties) (Environment & Land Case E022 of 2025) [2025] KEELC 5017 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5017/eng@2025-06-30

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