Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 5829 (KLR)
The bottom line
#The Environment and Land Court extended orders protecting two Diani Beach plots from eviction and demolition until the Court of Appeal rules on the dispute.
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 orders sought (extension of the limited stay/status quo orders issued on 20th June 2024) should be allowed by this court
Key legal issues
#Whether the court could extend its own status quo orders pending the hearing of an application for injunction pending appeal before the Court of Appeal
Yes. The court has inherent discretionary power to extend status quo orders it had earlier issued, and such orders do not supersede the orders of the Court of Appeal.
The court reasoned that it was not being asked to make orders on the application before the Court of Appeal, only to extend its own status quo orders. It applied the Erinford principle, as restated in Madhupaper, that an unsuccessful applicant for interlocutory injunction may obtain relief pending appeal. It weighed the balance of convenience - the County's project was at a preliminary stage and could await the outcome - found no prejudice to the respondents who already held title, and found the appeal would be rendered nugatory if demolition proceeded. Orders given would not supersede those of the Court of Appeal.
Legal principles established
#- Where a judge dismisses an application for interlocutory injunction, the court retains jurisdiction to grant the unsuccessful applicant an injunction pending appeal, unless the appeal is frivolous or greater hardship would be inflicted
- An order maintaining status quo is meant to preserve the existing state of affairs as at the time the order is made
Court orders
#- 1.The status quo orders issued on the 21st February 2024 are extended; no eviction and/or further transactions on titles LR No Kwale/Diani Beach Block/1526 and LR Kwale/Diani Beach Block/1527
- 2.The status quo orders shall subsist until and terminate at the ruling and determination of Mombasa Court of Appeal Civil Application No E072 of 2024 Ashbrook Limited & Brookshill Limited v County Government of Kwale & others
- 3.The costs of the application to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretionary powers of the court; extension of interim status quo orders pending application before the Court of Appeal
Relief refused
#Extension of the limited stay of execution orders for 90 days from 4th June 2024 as framed
The court instead extended the status quo orders issued on 21st February 2024 until determination of the Court of Appeal application
Costs
The costs of this application to be costs in the appeal
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.
Based on the foregoing the court issues the following orders to dispense of the application dated July 3, 2024; 1. The status quo orders issued on the 21st February 2024 are hereby extended.
The status quo orders in 1) above shall subsist until and or terminate at the ruling and determination of Mombasa Court of Appeal Civil Application No E072 of 2024 Ashbrook Limited & Brookshill Limited v County Government of Kwale & others
The costs of this application to be costs in the appeal.
There are cases, however, where it would be wrong to grant an injunction pending Appeal. These would include where the Appeal is frivolous or to grant it would infiict greater hardship than it would avoid
I think for me weighing the balance of convenience this project and which is stated is at its preliminary stages, can await the outcome of the application before the court of appeal.
Issues in the judgment
#Internal inconsistency on the date the status quo orders were issued: the application and narrative refer to orders of 20th June 2024, but the final orders extend 'status quo orders issued on the 21st February 2024'
Counsel of record discrepancies: the body names Mr. Andiwo for the Petitioners while the coram lists Mr. Makori for the Applicant; the 1st Respondent's counsel is given as Ms. Jadi but grounds attributed to 'Ms. Jadi' refer to submissions differing from the grounds of opposition text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2024] KEELC 5829 (KLR)", Case Analysis (2024). Petition (application dated July 3, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5829/eng@2024-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.