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ELCOtherELC Case No. 1187 of 2014 (formerly filed at Nairobi; transferred to Mombasa ELC)

Jaguar Petroleum Company Limited v Brighton Foods Limited & another [2014] KEELC 654 (KLR)

Environment and Land Court of Kenya
30 October 2014
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a court order that had been secretly altered to shut down businesses, ordering the premises reopened and a criminal investigation.

What this practically means

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Executive summary

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This is a first-instance ruling by S. Mukunya J in the Environment and Land Court at Mombasa on an ex parte application arising from a landlord-tenant dispute over premises on Nyerere Avenue, Mombasa (L.R. Mombasa/BLK/XIII/206 and 210), leased to the respondent companies by the applicant, Jaguar Petroleum Company Limited. The applicant sued for permanent injunction, eviction, arrears of rent, mesne profits, general damages for trespass and ancillary relief, and obtained interim orders from Gacheru J on 4th September 2014 restraining the defendants from selling, transferring, pledging or alienating the suit properties, for fourteen days only. The order subsequently extracted and issued on 8th September 2014 added the word 'trespassing', which was not in the judge's order. Acting on the extracted order, on 16th September 2014 the applicants, accompanied by police and private security, locked out the respondents and shut down their petrol station and restaurant business. The court held that the extracted order was illegal, oppressive and of no force of law, since the tampering had converted lawful occupants into trespassers before the inter partes hearing. It ordered the premises reopened forthwith, directed the respondents to comply with Gacheru J's lawful orders, referred the matter to the Provincial Director of CID for investigation of the tampering with a report within 45 days, directed prosecution of anyone found responsible, and maintained the status quo as at 16th September 2014 pending that report, after which the application and suit would proceed on merits. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the extracted order of 8th September 2014 was lawful, given that the word 'trespassing' had been added to the order made by Gacheru J
  2. 2.What interim directions should issue pending investigation of the tampering with the court order
  3. 3.Whether the premises should be reopened and the status quo maintained

Key legal issues

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01

Validity of the extracted ex parte order

Holding

The order extracted on 8th September 2014 was unlawful because it added the word 'trespassing' to Gacheru J's order, transforming lawful occupants into trespassers and enabling the closure of their business.

Reasoning

Gacheru J on 4th September 2014 issued carefully specified interim orders for fourteen days only, restraining sale, transfer, pledge or alienation. Her handwritten order did not include the word 'trespassing'. Someone added that word in the extracted order, with the effect of permitting the applicants, aided by police, to shut down and lock out the respondents before the inter partes hearing. The court held the extracted order to be illegal, oppressive and without force of law.

p. 3
02

Appropriate interim remedial directions

Holding

The court directed immediate reopening of the premises, maintenance of the status quo as at 16th September 2014, compliance with Gacheru J's orders, and a CID investigation into the tampering.

Reasoning

Because the tampering had not yet been attributed to anyone, the court could not finally determine culpability. It therefore restored access to the premises, preserved Gacheru J's lawful interim orders, referred the matter to the Provincial Director of CID for investigation and a report within 45 days, and directed that anyone found responsible be prosecuted, before the application and suit proceed on merits.

p. 4

Legal principles established

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  • A court order as extracted must conform strictly to the order as made by the judge; an altered or embellished order is illegal and of no legal force
  • A party who benefits from an unlawfully extracted order cannot be allowed to continue enjoying it

Court orders

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  1. 1.The premises of the respondents, both the petrol station and the restaurant, shall be opened forthwith
  2. 2.The respondents shall comply with the orders issued by Gacheru J until further orders of the court
  3. 3.The file shall be forwarded to the Provincial Director of CID Nairobi in-charge of investigations and fraud to investigate who deliberately extracted the unlawful order, with a report to be filed in court within 45 days
  4. 4.Anyone found responsible for the unlawful extraction shall be charged and prosecuted forthwith
  5. 5.Pending the CID report, the status quo as appertaining on 16th September 2014 shall be maintained
  6. 6.Once the report is brought, the application and suit shall proceed on merits

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act Cap 21 (Sections 1A, 1B, 3A, 63) and Order 40 Rules 1(a), 3(3) and 4(2) of the Civil Procedure Rules, 2010, in a landlord-tenant/property dispute

Relief refused

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Confirmation of the extracted order restraining the defendants from trespassing

The extracted order was tampered with and is illegal and oppressive

p. 3

Costs

No costs order made in this ruling.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The extracted order is illegal and without any force of law. The applicant cannot be allowed to continue enjoying it. It is extremely oppressive on the respondents.
p. 3Illegality of a tampered court order
The premises of the respondent shall be opened forthwith. Both the petrol station and the restaurant.
p. 4Final orders - reopening of premises
In the meantime pending the result of CID the status quo as appertaining on 16th September 2014 shall be maintained.
p. 4Final orders - status quo pending investigation
Anyone found to have done so shall be charged and prosecuted forthwith.
p. 4Final orders - prosecution of those responsible

Issues in the judgment

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material

The extracted order as reproduced in the judgment includes 'trespassing' and other words not in Gacheru J's order, and the judgment itself notes the discrepancy

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, "Jaguar Petroleum Company Limited v Brighton Foods Limited & another [2014] KEELC 654 (KLR)", Case Analysis (2014). ELC Case No. 1187 of 2014 (formerly filed at Nairobi; transferred to Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/654/eng@2014-10-30

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