Mambo (Administrator of the Estate of Mohammed Mambo) & 3 others v Hawkins & 4 others (Environment & Land Case 247 of 2021) [2024] KEELC 6121 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application opposed only by grounds of opposition, without a replying affidavit, is unopposed and uncontroverted
- 2.Whether sufficient grounds have been given to set aside/review the ruling of 6th February 2024
Key legal issues
#Effect of failure to file a replying affidavit in response to an application
The court accepted that grounds of opposition filed by the respondents did not respond to the averments in the application, rendering it unopposed, but still proceeded to consider the merits on its own.
The court referred to Order 51 rule 14 of the Civil Procedure Rules which permits a respondent to oppose by preliminary objection, replying affidavit, or grounds of opposition. Relying on Kennedy Otieno Odiyo v KenGen, it found the grounds of opposition were general averments addressing form rather than substance, so the supporting affidavit stood uncontroverted. However, an unopposed application must still be determined on its merits.
Whether the ruling of 6th February 2024 contained an error apparent on the face of the record justifying review under Section 80 of the Civil Procedure Act and Order 45 rule 1
No error apparent on the face of the record was found; the status quo orders were merited and necessary to preserve the suit property pending determination of ownership.
An error apparent on the face of the record must be self-evident and require no elaborate argument. The court, having perused its own ruling of 6/2/2024, was convinced the status quo orders were justified since the applicant was developing the disputed properties while the central issue of ownership remained undetermined. Status quo orders preserve the suit property and no mistake had been committed.
Whether the contractor's report amounted to new and important facts warranting review
The report was not a sufficient basis for review because the applicant knowingly commenced construction during the pendency of the suit and before any finding on ownership.
The report by an assistant architect, prepared two days after the ruling, detailed financial repercussions of the cessation of construction. The court held the project was commenced during proceedings, with the applicant aware that no finding on ownership had been made. Proceeding to develop was a gamble amounting to stealing a match, and the blame could not be shifted to the court.
Legal principles established
#- Grounds of opposition address only issues of law; where no replying affidavit rebuts the averments in a supporting affidavit, those averments stand uncontroverted.
- A party who commences development on disputed property during the pendency of a suit does so at its own risk and cannot shift blame to the court.
Court orders
#- 1.The Notice of Motion dated 14/2/2024 is dismissed
- 2.Costs shall abide the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rule 7, Order 45 Rules 1 and 2 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Section 19(2) ELC Court Act
Relief refused
#Stay of the ruling of 6th February 2024 and all consequential orders
The court found the status quo orders were merited and necessary to preserve the suit property pending determination of ownership
Setting aside and/or review of the ruling of 6th February 2024
No error apparent on the face of the record; the applicant commenced development during the pendency of the suit at its own risk
Alternative prayer for the Plaintiffs to deposit Kshs 50,000,000/- as security
The application was found unmerited as it did not meet the threshold for grant of the orders sought
Costs
Costs shall abide the outcome of the main suit
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.
Grounds of opposition addresses only issues of law and no more.
It is trite that status quo orders are issued with the aim of preserving the suit property.
The Applicants actions are akin to stealing a match and which in my humble view will result in an injustice.
The upshot is that the Notice of Motion dated 14/2/2024 is hereby dismissed. Costs shall abide the outcome of the main suit.
Issues in the judgment
#The case number of the main suit is not stated in the judgment; only the Notice of Motion dated 14/2/2024 is identified.
The applicant is referred to variously as the 3rd Defendant and the Applicant; the supporting affidavit is sworn by Peter Burugu, Managing Director of the 3rd Defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mambo (Administrator of the Estate of Mohammed Mambo) & 3 others v Hawkins & 4 others (Environment & Land Case 247 of 2021) [2024] KEELC 6121 (KLR)", Case Analysis (2024). ELC Case of 2006 (Notice of Motion dated 14/2/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6121/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.