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ELCDismissedNot stated in the extract

Wanjiru & another v Bajuun Properties Limited & 2 others (Environment and Land Case Civil Suit E049 of 2023) [2025] KEELC 3206 (KLR)

Environment and Land Court
8 April 2025
2,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to lift injunctions restraining a developer, ruling the orders resulted from the developer's own failure to respond, not unfair process.

What this practically means

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Executive summary

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The 1st Defendant moved the court by Motion dated 19th September 2024 under Order 40 rule 7 of the Civil Procedure Rules seeking discharge, variation or setting aside of injunctive orders granted on 11th July 2024 restraining it from demolishing or constructing on LR No. Nairobi Block 104/231 and LR No. Nairobi Block 104/228 (amalgamated with 104/229 and 104/230), and leave to proceed with development per Nairobi City County approvals of 6th December 2022. The Applicant argued the orders were granted undefended and ex parte without material disclosure, and that it was losing Kshs.500,000 daily in contractor penalties. The Plaintiffs opposed, contending the Applicant was represented throughout, had failed to respond despite an extension of 21 days, that allegations of fraud in obtaining approvals were unparticularised, and that the claimed losses were grossly exaggerated. The court held the application fell under Order 40 rule 7 rather than Order 45 review, and assessed whether a basis for variation existed. It found the impugned orders were not ex parte but the product of the Applicant's inaction, since it had advocates on record from August 2023 and squandered the opportunity to respond. The claim of daily losses was undermined by the Applicant's two-month delay in moving the court and its earlier indolence. The court was also unpersuaded that the Applicant would be denied a hearing, as it could litigate the issues at the trial of the main suit. The application was dismissed and the matter was directed to proceed to hearing.

Questions the Court framed

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

  1. 1.Whether a basis has been laid to vary and/or discharge or set aside the injunctive orders granted on 11th July 2024 under Order 40 rule 7
  2. 2.Whether the injunctive orders were irregularly or ex parte obtained without the Applicant being heard
  3. 3.Whether the alleged daily losses of Kshs.500,000 justify variation of the orders

Key legal issues

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01

Whether the injunctive orders of 11th July 2024 were obtained ex parte without the Applicant being heard

Holding

The orders were not ex parte in the pejorative sense; they resulted from the Applicant's failure to file any response despite representation and despite an extension of 21 days granted to the Respondents

Reasoning

The court found the Applicant had advocates on record from August 2023 and was represented whenever the matter came up. Time was extended for filing responses but the opportunity was not utilised. A party cannot fault orders arising from its own inaction, and it will still be heard at the trial of the main suit.

p. 4
02

Whether the correct procedural vehicle was Order 45 (review) as urged by the Plaintiffs

Holding

The application was properly brought under Order 40 rule 7, not review; the court therefore assessed whether a basis existed to vary or discharge the injunction

Reasoning

The court held that since this was not an application for review, the Order 45 thresholds invoked by the Plaintiffs were irrelevant. Order 40 rule 7 allows a dissatisfied party to seek discharge, variation or setting aside of an injunction, and the court assessed the application on that basis.

p. 3
03

Whether alleged daily losses of Kshs.500,000 justified setting aside the injunction

Holding

The claim of daily losses did not assist the Applicant, whose delay of two months in bringing the application was inconsistent with substantial ongoing losses

Reasoning

The court noted status quo orders were in place from 19th September 2023, that the Applicant contributed to delay in prosecuting the application of 9th August 2023, and that the present application was filed two months after the injunction. Indolence was inconsistent with the claim of huge daily losses.

p. 5

Legal principles established

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  • An order for injunction may be discharged, varied or set aside on application by any party dissatisfied with it under Order 40 rule 7, and the court assesses whether a basis has been laid for such variation or discharge
  • A party who fails to exercise its right to respond within afforded timelines cannot later seek setting aside of orders on the basis of losses it claims to be suffering; inaction forfeits the complaint

Court orders

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  1. 1.The Notice of Motion dated 19th September 2024 is dismissed in its entirety; the injunction orders granted on 11th July 2024 remain in force
  2. 2.The matter to proceed on merit, it being at the stage of setting the hearing date of the main suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 40 rule 7 of the Civil Procedure Rules and all enabling provisions of the law

Relief refused

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Discharge, variation or setting aside of the orders of 11th July 2024 restraining the 1st Defendant from demolishing and/or constructing on LR No. Nairobi Block 104/231 and LR No. Nairobi Block 104/228

No reasons were given for failure to file a response when the opportunity was presented, and the Applicant will have an opportunity to be heard at the trial

p. 5

Leave for the 1st Defendant to proceed with development per the approved plans

The order was not made ex parte but resulted from the Applicant's inaction; alleged losses did not justify variation given the Applicant's indolence

p. 4

Costs

Costs of the application provided for the Plaintiffs/Respondents (dismissal with costs urged; no separate costs clause reproduced in the closing orders)

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.

Any order for an injunction may be discharged, or varied, set aside by the court on application made thereto by any party dissatisfied with such order.
p. 3Order 40 rule 7 - discharge or variation of injunction
The impugned order was not made exparte but due to inaction by the counsels representing the Applicant.
p. 4Effect of failure to respond to injunction application
I am not satisfied that the present application is merited for two reasons; first because no reasons have been stated why no response was filed when the opportunity was presented. Secondly, the Applicant has opportunity to defend itself during the hearing of the suit on merits so its not been denied the right to hearing.
p. 5Reasons for dismissal
Let the matter proceed on merit taking into consideration that it was at the stage of setting the hearing date of the main suit.
p. 5Final orders - disposition

Issues in the judgment

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minor

The judgment does not state the case number, party names in the title, or a distinct costs order in the closing disposition; costs were only sought in the motion prayers

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, "Wanjiru & another v Bajuun Properties Limited & 2 others (Environment and Land Case Civil Suit E049 of 2023) [2025] KEELC 3206 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3206/eng@2025-04-08

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