Jackson Agui & 1941 others v Cabinet Secretary Ministry of Devolution & Planning & another [2014] KEELC 412 (KLR)
The bottom line
#A Kenyan court refused to stop forest evictee compensation because the money had already been paid, and declined to order re-vetting before hearing the full case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should stop payment of compensation monies to the persons identified as evictees of Kipkurere Forest pending determination of the petition
- 2.Whether the court should order the Cabinet Secretary and the Attorney General to appoint an independent task force to supervise the profiling and vetting of genuine evictees pending determination of the petition
Key legal issues
#Whether the suit as commenced by Originating Summons and the application styled as a Chamber Summons were procedurally competent
Both were procedurally irregular, but the court deemed the Originating Summons a petition and construed the Chamber Summons as a Notice of Motion, avoiding technicalities
Rules 4(1) and 10(1) of the 2013 Practice and Procedure Rules require enforcement of fundamental rights to be by petition, not Originating Summons. Rules 23 and 24 provide that interim or conservatory applications be made by Notice of Motion. Notwithstanding these defects, the court applied a non-technical approach, deeming the suit and application properly instituted, and proceeded to consider the application on its merits.
Whether the interim injunction stopping payment of compensation should be granted
Refused because the money had already been disbursed into the individual accounts of the interested parties
Affidavits of the bank's Executive Director showed that 1,055 of 1,190 accounts were credited on 24 and 27 January 2014, shortly before the payment-stop order was served. About 90% of the funds had been disbursed and the court saw no significance in stopping the remaining 10%, rendering the prayer overtaken by events and moot at the interlocutory stage.
Whether an independent task force should be ordered to re-profile the evictees at the interlocutory stage
Refused because the relief was final in nature and belonged to the petition proper
The prayer mirrored the substantive relief in the petition. Granting it would effectively determine the petition without a hearing on the merits. The court held that the petitioners would have an opportunity to argue the petition and, if successful, obtain the relief then. The question whether the petitioners or their representative were impostors was likewise deferred to the full hearing.
Legal principles established
#- An application seeking enforcement of fundamental rights and freedoms must be brought by way of a petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and not by Originating Summons; however, procedural defects may be cured under the overriding objective
- A court will not grant at an interlocutory stage relief which amounts to the final relief sought in the main petition
Court orders
#- 1.The Chamber Summons application dated 19 December 2013 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 20, 21, 22 and 27 of the Constitution of Kenya, 2010, read with The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Interim injunction restraining the Cabinet Secretary from releasing compensation monies to persons purportedly identified as evictees
The prayer had been overtaken by events as the money had already been credited into the individual accounts of the interested parties
Order directing the Cabinet Secretary and the Attorney General to appoint an independent task force to supervise profiling and vetting of genuine evictees
The prayer mirrored the final relief sought in the petition and could not be granted at the interlocutory stage without hearing the petition on its merits
Costs
No orders as to costs - 'The same is therefore hereby dismissed, but I make no orders as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It appears to me that the order in the application, seeking to stop payment of the monies, into the individual accounts of the interested parties, has been overtaken by events since the money has already been credited into the individual accounts of the interested parties.
To me, that prayer is not an interlocutory prayer, but a final prayer, which in the circumstances of this case will not be prudent to give, without hearing the petition on its merits.
For the above reasons, I am unable to allow the prayer for fresh profiling at this stage of the proceedings. That as I have stated, will be the issue to be argued in the petition.
The same is therefore hereby dismissed, but I make no orders as to costs.
Issues in the judgment
#The judgment records the further bank affidavit as filed on 25 March 2013, which precedes the proceedings commenced in December 2013 and the first affidavit of 6 March 2014; the year appears to be an error for 2014
The judgment refers to the deponent of the supporting affidavit variously as Joseph Agui and Jackson Agui without reconciling the names
The prayer paragraph states 'to court court's (sic) further direction' and other drafting errors carried into the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Agui & 1941 others v Cabinet Secretary Ministry of Devolution & Planning & another [2014] KEELC 412 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/412/eng@2014-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.