Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 4862 (KLR)

The Respondents and Interested Party argued the court had exhausted its jurisdiction after the 3/5/2023 judgment. The court held that the very availability of review applications shows a court is not functus officio, but that this did not save the applications, which failed on other grounds including the applicants' submission to the Court of Appeal's jurisdiction.

Section 152F gives evictees relief against notices under Section 152E, but the court reasoned that these provisions target situations where there is no suit and fresh proceedings would commence. A notice issued in execution of a decree falls outside them, so the application anchored on them, filed within these proceedings, could not stand.

The applicants had lodged an injunction application in the Court of Appeal dated 20/2/24. The court held that having submitted to that jurisdiction, this court could not entertain the parallel application. The court noted it could grant a temporary injunction pending appeal only when exercising appellate jurisdiction under Order 42 Rule 6(6), which was not the case here as it sat as the court issuing the decree.

Applying the Mweru and Issenberg tests, the court found the injunction orders were issued on 26/2/24, after the survey had begun, and no evidence proved continued occupation or that the demolitions were undertaken by the County. The systematic removal of fittings suggested caretakers, not the County, and the higher burden of proof in contempt was not discharged.