Opiyo v Rotino (Environment and Land Case E028 of 2025) [2025] KEELC 8462 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an injunction because the plaintiff hid her personal relationship with the defendant when seeking emergency orders.
What this practically means
#Executive summary
#Key legal issues
#Duty of full and frank disclosure when obtaining ex parte orders
The plaintiff failed to disclose the close personal relationship with the defendant which formed the context of the memorandum of understanding, a material fact, and the interim orders obtained were set aside.
The court applied the line of authority from Baha Durali Ebrahim Shamji through Coast Apparel and Hasmo Agencies: an ex parte applicant must disclose material facts including those that inquiry would have revealed. The plaintiff relied solely on letters and an allotment letter without disclosing the relationship and the disputed context of the memorandum of understanding, which was material to whether an arguable right existed. Non-disclosure deprived her of any advantage derived from the orders.
Sufficient cause and discretion to set aside orders where a party was served but condemned unheard
Even where service by email was not denied, the court's discretion to set aside ex parte orders may be exercised where sufficient cause is shown, including the defendant's medical conditions and prompt filing of a defence and counterclaim.
Relying on Shah v Mbogo, Patel v E.A. Cargo Handling, Wachira Karani, Richard Ncharpi Leiyagu and CMC Holdings, the court held that discretion aims to avoid unjust or ridiculous results and hardship from excusable mistakes. The defendant, a retiree with diabetes, kidney disease and mild dementia, rarely accessed the email used for service; he filed his defence and this application promptly and was not acting to obstruct justice, so the discretion was exercised in his favour.
Legal principles established
#- A litigant who obtains ex parte orders has a duty to make full and frank disclosure of material facts, including the context of the relationship underlying the claim
- Sufficient cause for setting aside is a question of fact depending on the circumstances of each case, aimed at doing justice between the parties
Court orders
#- 1.The orders of temporary injunction issued by a ruling dated 24/9/2025 are set aside
- 2.No order as to costs
- Jurisdiction invoked
- Order 40 Rule 7 of the Civil Procedure Rules - power to discharge, vary or set aside an injunction order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opiyo v Rotino (Environment and Land Case E028 of 2025) [2025] KEELC 8462 (KLR)", Case Analysis (2025). Environment and Land Case E028 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8462/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.