https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3076

Sucham Investments Limited v Genesis Avenue Investments Limited & 5 others (Environment and Land Case E005 of 2026) [2026] KEELC 3076 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELC 3076 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E005 of 2026 EK Wabwoto, J May 22, 2026 Between Sucham Investments Limited Plaintiff and Genesis Avenue Investments Limited 1st Defendant The First Avenue Investments Llc 2nd Defendant The Land Registrar, Mombasa 3rd Defendant The Chief Land Registrar 4th Defendant kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (Kudheiha) 5th Defendant Kinyua & Company Auctioneers Limited 6th Defendant Ruling 1.For determination before this Court is the Notice of Motion dated 15th May 2026 brought by the 1st and 2nd Defendants/Applicants, Genesis Avenue Investments Limited and The First Avenue Investments LLC, expressed to be brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, Order 40 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The application is supported by the affidavit of a director of the 1st Defendant/Applicant sworn on even date, together with the annextures thereto. 2.The application seeks, in substance, the following orders:(a)That the interim Order of this Court issued on 13th May 2026 directing the Officer Commanding Station (OCS), Tiwi Police Station, and/or the Regional Police Commander, Kwale County, and/or any other lawful police officer duly authorised, to provide police assistance to the Plaintiff/Respondent in aid of the Orders of Hon. Justice L.L. Naikuni of 29th January 2026 and 29th April 2026, be reviewed, varied and/or set aside;(b)That, consequent upon the above, the Plaintiff/Respondent’s Notice of Motion dated 12th May 2026 seeking police assistance be dismissed; and(c)That the costs of the application be provided for. 3.The application is opposed by the Plaintiff/Respondent, who urges the Court to dismiss the application. I have had the benefit of considering the application, the Supporting Affidavit and its annextures, the rival oral submissions of learned counsel and the authorities to which I was referred. This is my considered Ruling. 4.The factual matrix of this dispute has been ventilated at length in respect to the earlier orders of Hon. Naikuni, J. of 29th January 2026 and 29th April 2026, and I need not rehearse it in full. In brief, the Plaintiff/Respondent claims to be the registered proprietor of the leasehold interests in Title Numbers C.R. 17505 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442), Kwale, on which stands the establishment hitherto operated as Amani Tiwi Beach Resort (“the Suit Property”). 5.Following an alleged execution and sale by private treaty in November 2025 said by the Plaintiff/Respondent to have been undertaken in violation of subsisting Prohibitory Orders of the Employment and Labour Relations Court at Mombasa the Suit Property is presently registered in the name of the 1st Defendant/Applicant, Genesis Avenue Investments Limited. The Plaintiff/Respondent contests the validity of that transfer and seeks, in the main suit, a raft of substantive reliefs including cancellation of the impugned transfers and restoration of its title. 6.Pending the determination of the substantive suit, this Court (Naikuni, J.) issued two preservatory orders. The Order of 29th January 2026 was an injunction restraining the 1st and 2nd Defendants/Applicants and those claiming through them from “entering upon, occupying, remaining on, managing, operating, leasing, charging, selling, transferring, alienating, wasting or otherwise in any manner interfering with” the Suit Property. The Order of 29th April 2026 reiterated and extended that injunction to include construction, renovation, alteration, demolition, excavation and development. Neither Order made any express provision for the delivery up of vacant possession to the Plaintiff/Respondent, nor any other mandatory relief. 7.The Plaintiff/Respondent having taken the view that the said Orders were being disobeyed, two further applications were placed before this Court on 12th May 2026 first, a Notice of Motion seeking to cite the directors of the 1st and 2nd Defendants/Applicants for contempt, and secondly, a Notice of Motion seeking police assistance in aid of the Orders of 29th January and 29th April 2026. 8.Upon being moved ex parte on 13th May 2026 on the police-assistance application, this Court certified the application as urgent and, persuaded prima facie by the Plaintiff/Respondent’s depositions, issued an interim Order in the following terms:“That the Officer Commanding Station (OCS), Tiwi Police Station and/or the Regional Police Commander, Kwale County or any other lawful police officer duly authorised shall forthwith provide all necessary police assistance to the Plaintiff/Applicant and/or its authorised agents to ensure compliance to the Orders issued by Hon. Justice L.L. Naikuni on 29th January 2026 and 29th April 2026.” 9.It is the said Order of 13th May 2026 that has prompted the 1st and 2nd Defendants/Applicants to file the present Notice of Motion of 15th May 2026, by which they seek the review, variation and/or setting aside of that Order, and the dismissal of the underlying application of 12th May 2026. 10.Learned counsel for the 1st and 2nd Defendants/Applicants urged the Court to grant the application on, broadly, the following grounds:(i)That the Plaintiff/Respondent approached the Court ex parte on 13th May 2026 and failed to make full and frank disclosure of all material facts, in particular that the 1st Defendant/Applicant is the current registered proprietor of the Suit Property, that the persons in occupation derive their occupation through that registered title, that the validity of that title is the very subject-matter of the substantive suit and has not yet been judicially impeached, and crucially that the 1st and 2nd Defendants/Applicants had on 10th March 2026 filed a Notice of Preliminary Objection challenging the very jurisdiction of this Court to hear and determine the suit and any applications arising therefrom, which Preliminary Objection remains pending and undetermined and ought, on settled principle, to have been disposed of before the Court was moved for any further substantive or coercive relief;(ii)That the underlying Orders of 29th January 2026 and 29th April 2026 are prohibitory in nature; they restrain certain acts but do not compel the delivery up of vacant possession of the Suit Property to the Plaintiff/Respondent. The interim Order of 13th May 2026 is therefore being deployed, in practical effect, to obtain by the back door a mandatory possession order that this Court has never granted;(iii)That the proper and lawful vehicle for redressing alleged disobedience of Court orders is the contempt of court jurisdiction, and the Plaintiff/Respondent has in fact already filed a contempt application of even date which is pending hearing and determination. To order police assistance prior to the determination of the contempt application is, in effect, to prejudge that application and to circumvent the procedural safeguards to which an alleged contemnor is entitled, including the right to be heard before being adjudged in contempt;(iv)That the order for police assistance is, on its face, susceptible to abuse: the persons currently on the Suit Property include workmen, security personnel and other third parties who are not parties to these proceedings and against whom no order has been made. To authorise the use of police force against such persons, in the absence of any order binding them, would be contrary to Articles 47 and 50 of the Constitution and the principles of natural justice; and(v)That, in the totality of the circumstances, the balance of convenience and the lower risk of injustice now lie in setting aside the interim Order of 13th May 2026 and maintaining the status quo until the substantive issues of title, contempt and possession are heard and determined on their merits. 11.In response, learned counsel for the Plaintiff/Respondent maintained that the Orders of 29th January 2026 and 29th April 2026 are clear in their terms; that they have been wilfully and persistently disobeyed; that the Court has both the jurisdiction and the duty to ensure that its own orders are not reduced to empty proclamations; and that the assistance of the police was sought not to dispossess innocent third parties but to give practical efficacy to the existing injunctions. The Court was urged to dismiss the present application and to maintain the Order of 13th May 2026. 12.Having considered the application and rival positions this court is of the considered view that the singular issue that falls for determination by this Court is:“Whether the interim Order of this Court issued on 13th May 2026 directing the provision of police assistance in aid of the Orders of 29th January 2026 and 29th April 2026 ought to be varied and/or set aside.” 13.This Court’s jurisdiction to review, vary or set aside such an order on the application of an affected party is preserved by Order 40 Rule 7 and Order 45 of the Civil Procedure Rules, 2010, and by the inherent jurisdiction recognised under Section 3A of the Civil Procedure Act. The principle has been affirmed in a long line of authorities, including Pastor James Maina Ng’ang’a v. Inspector General, National Police Service & Others [2014] eKLR, in which the Court reiterated that orders made ex parte stand to be discharged where, upon a fuller hearing, the basis on which they were granted is shown to be unsound. I therefore approach the matter on the footing that the 1st and 2nd Defendants/Applicants are properly before this Court, and that the burden lies on them, as the parties seeking to disturb a subsisting order, to satisfy the Court that the Order of 13th May 2026 ought now to be set aside. 14.Counsel for the Applicants took the position that there was materinal non disclosure by the Plaintiff/Respondent and that the court was misled in granting the order for police assistance. On material non-disclosure, it is noteworthy that when a party moves a Court ex parte, the duty of utmost good faith requires the disclosure of all matters, favourable or unfavourable, that the Court would wish to know before exercising its discretion: Republic v. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR. On the material now before me, three matters of significance were not placed in the proper relief on 13th May 2026: that the 1st and 2nd Defendants/Applicants had on 10th March 2026 filed a Notice of Preliminary Objection challenging the very jurisdiction of this Court to entertain the suit and any applications arising therefrom, which Preliminary Objection remains pending and undetermined. The said Preliminary Objection raises weighty points of law, including the contention that the substratum of the suit concerns the enforcement of a monetary decree of the Employment and Labour Relations Court at Mombasa in ELRC Cause No. E032 of 2023, and that under Section 34(1) of the Civil Procedure Act all questions relating to execution, discharge or satisfaction of that decree must be determined by the court executing the decree, and further that this Court, being of equal constitutional status to the Employment and Labour Relations Court under Article 162(2) of the Constitution, lacks jurisdiction to review, supervise, vary or invalidate execution of an ELRC decree. It is settled law, since the decision in “Owners of the Motor Vessel Lillian S” v. Caltex Oil (Kenya) Ltd [1989] eKLR, that jurisdiction is everything and that, where its jurisdiction is challenged, a court ought to down its tools and determine the question of jurisdiction in limine before taking any further step in the proceedings. The non-disclosure of the pendency of the Preliminary Objection of 10th March 2026 was, in my respectful view, a matter of the first importance: had the Court been alive to the fact that its very jurisdiction stood challenged and was awaiting determination, it would have been exceedingly slow to issue, on an ex parte basis, an order as coercive in its practical effect as one for police assistance. Had these matters been squarely before the Court at the ex parte stage, the Court would, in my view, have arrived at a different outcome. 15.On the balance of convenience this court has weighed the competing considerations carefully. On the one hand, there is the legitimate interest of the Plaintiff/Respondent in ensuring that the Orders of this Court are not flouted, and the very real risk that ongoing works at the Suit Property may cause damage that is not easily compensated in damages. On the other hand, there are the rights of the 1st and 2nd Defendants/Applicants and the persons in occupation not to be subjected to the coercive force of the State save on a clear legal basis, and the integrity of the contempt jurisdiction, which would be set at nought if its remedies were anticipated by orders of this nature. 16.For the foregoing reasons, the singular issue framed for determination is answered in the affirmative: the Order of this Court issued on 13th May 2026 ought to be, and is hereby, set aside. 17.In the end, this court makes the following orders in respect to the Notice of Motion dated 15th May 2026;(a)That the Order of this Court issued on 13th May 2026, directing the Officer Commanding Station (OCS), Tiwi Police Station and/or the Regional Police Commander, Kwale County, to provide police assistance to the Plaintiff/Respondent, be and is hereby set aside in its entirety.(b)That for the avoidance of doubt, nothing in this Ruling shall be construed as varying, discharging or in any manner affecting the subsisting Orders issued by Hon. Justice L.L. Naikuni on 29th January 2026 and 29th April 2026.(c)Each party to bear own costs of the application.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 22ND DAY OF MAY 2026.E. K. WABWOTOJUDGEIn the presence of:Mr. Mwaniki for the Plaintiff/Respondent.Mr. Kadima, Mr. Kirui and Ms. Mwangi for the 1st and 2nd Defendants/Applicants.N/A for the 3rd, 4th Defendant and 6th Defendants.Mr. Owonga representing the 5th Defendant.Court Assistants; Mary Ngoira and David Ngoosa.