Kungu & another (As Administrators of the Estate of Damian Cosmas Kungu alias Damian Cosmas Kungu Muhinja - Deceased) v Kibagare Slums Association Sued through Abdi Godana Dida & David M. Nyaga, Its Officials and Trustees; National Land Commission (NLC) (Interested Party) (Environment and Land Case 64 of 2020) [2025] KEELC 7731 (KLR)
The bottom line
#A Nairobi court restored a land injunction that had lapsed after 12 months, but refused to jail anyone for breaching the expired orders.
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 Defendants should be restrained from interfering with the suit property
Key legal issues
#Whether the Defendants should be restrained from interfering with the suit property notwithstanding the lapse of the earlier injunctive orders under Order 40 Rule 6
The injunction was restored; although the orders of 1st October 2020 lapsed after twelve months, the Defendants had no legal right to change the character of the suit property pending determination, and the injunctive orders were restored under Order 40 Rule 6.
The court noted that Justice Obaga had granted interlocutory injunctions on 1st October 2020 which were never varied. Relying on the doctrine of lis pendens as explained in Cieni Plains Company Limited v Ecobank Kenya Limited, the court held that altering the character of disputed property during litigation is done in bad faith and defeats the course of justice. Order 40 Rule 6 permits the court, for sufficient reason, to order otherwise than lapse, and the court invoked it to restore the injunction.
Whether the Defendants' officials could be committed for contempt of the order of 12th May 2020
No - contempt proceedings could not issue because the orders allegedly breached had lapsed by operation of law.
Applying Barclays Bank of Kenya Limited v Henry Ndungu Kinuthia, the court found that parties cannot be held in contempt of orders that have ceased to exist by operation of law after twelve months under Order 40 Rule 6. Since the 12th May 2020 orders had lapsed, the committal and leave-to-institute-contempt prayers failed.
Legal principles established
#- Even where interlocutory injunctive orders lapse by operation of law under Order 40 Rule 6, the doctrine of lis pendens prevents a party from altering the character of disputed property while the suit is pending
- Contempt cannot be founded on orders that have lapsed and ceased to exist by operation of law
Court orders
#- 1.Pending the hearing and determination of the suit, a temporary injunction restraining the Defendants/Respondents, their agents, servants or any person acting under their instructions, from constructing, building, developing, erecting permanent or temporary structures, fencing, selling, transferring, alienating, charging or otherwise dealing with LR No. 209/9002/2 and LR No. 209/9002/3
- 2.The Officer Commanding Station (OCS) Spring Valley Police Station directed to supervise and ensure compliance with the strict terms of the orders at the expense of the Defendants/Respondents
- 3.Costs of the application awarded to the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Rules, Order 40 Rule 6, to restore lapsed interlocutory injunctive orders pending determination of the suit
Relief refused
#Committal to civil jail and Industrial Area Remand Prison of the Defendants' officials and trustees Abdi Godana Dida and David M. Nyaga for contempt of the order of 12th May 2020
The orders alleged to have been violated had lapsed by operation of law under Order 40 Rule 6 of the Civil Procedure Rules
Leave to institute contempt of court proceedings against the Defendants for willful disobedience of the orders issued on 12.05.2020
Same reason - the orders had lapsed and contempt could not lie for breach of non-existent orders
Costs
The costs of the application is awarded to the Plaintiffs.
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.
I will invoke the provisions of Order 40 Rule 6 of the Civil Procedure Rules and restore the injunctive orders issued on the 1st October, 2020, that were deemed to have lapsed pending the hearing and determination of this suit.
even though the Orders of injunction lapsed by operation of law after twelve (12) months, while invoking the doctrine of lis pendens, I find that the Defendant did not have a legal right to proceed to change the character of the suit property, while the dispute herein is yet to be determined.
The doctrine of lis pendens often expressed in the maxim pendente lite nihilin novature (during litigation nothing should be changed)
That pending the hearing and determination of this suit, a temporary injunction be and is hereby issued restraining the Defendants/Respondents, whether by themselves, their agents, servants, or any person acting under their instructions, from constructing, building, developing, erecting permanent or temporary structures, or other forms of development, fencing, selling, transferring, alienating, charging, or in any other manner dealing with the parcel of land known as LR No. 209/9002/2 and LR No. 209/9002/3, which are the subject of the present dispute.
The costs of the application is awarded to the Plaintifis.
Issues in the judgment
#The judgment refers to injunction orders issued on 12th May 2020 (contempt application) but the record shows the operative interlocutory injunction was issued on 1st October 2020 by Justice Obaga; the court restores the 1st October 2020 orders while the contempt prayers relate to 12th May 2020 orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kungu & another (As Administrators of the Estate of Damian Cosmas Kungu alias Damian Cosmas Kungu Muhinja - Deceased) v Kibagare Slums Association Sued through Abdi Godana Dida & David M. Nyaga, Its Officials and Trustees; National Land Commission (NLC) (Interested Party) (Environment and Land Case 64 of 2020) [2025] KEELC 7731 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7731/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.