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ELCPartially AllowedNot stated in the excerpt· [2014] KEELC 323 (KLR)

Susan Mukami Kamwati & another v Elite Paka Service Limited [2014] KEELC 323 (KLR)

High Court of Kenya
1 July 2014
PNP. Nyamweya
2,788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court halted a developer's construction until it proves it has all required approvals, even though buyers had contractually agreed to the development.

What this practically means

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Executive summary

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The Plaintiffs, purchasers and lessees of apartments 12 and 18 in Block C on L.R. No. 209/1052/1, moved the court by Notice of Motion dated 12th November 2013 seeking temporary injunctions restraining the Defendant from demolishing structures, blocking parking and excavating the land, a mandatory injunction to restore the properties, and an order that the Defendant deposit Kshs.160,000 monthly into an escrow account. They alleged that the Defendant's construction since September 2013 breached sale agreements and leases, destroyed the common staircase, obstructed parking and caused loss of tenants. The Defendant responded that the Plaintiffs had contractually agreed to further development, that the demolished blocks (D, E and F) were independent of Block C, that interference was minimal, and that a stay would cause it tremendous loss given a financing facility tied to construction. Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank, the court held that the Plaintiffs had agreed in the sale agreement and leases to further development, leaving only questions of legality, reasonableness and workmanship. A locus visit on 28th March 2014 showed minimal interference. However, the Defendant failed to show that building plans had been approved as required. The court declined the mandatory injunctions for want of special circumstances per Kenya Breweries v Washington Okeyo, and instead restrained further construction pending evidence of statutory compliance, with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

No prima facie case of infringement established beyond the question of legality of the development, as the Plaintiffs contractually agreed to further construction

Reasoning

The sale agreement recitals and clause 5.1 disclosed the intended additional apartments and the leases contained entire agreement clauses. The Plaintiffs therefore agreed to the Defendant undertaking more developments; only legality, reasonableness and workmanship of the developments could be questioned.

p. 4
02

Balance of convenience

Holding

Determined on balance of convenience in favour of a limited restraint pending proof of regulatory approvals

Reasoning

The Plaintiffs retained access and use of their apartments while the Defendant risked irreparable loss on its financing facility tied to construction. However, the Defendant did not address whether building plans were approved, so the court restrained further construction pending evidence of compliance with applicable laws.

p. 5
03

Mandatory injunction

Holding

Denied for want of special circumstances and in the absence of observed destruction

Reasoning

Kenya Breweries v Okeyo requires special circumstances and clear cases. The Plaintiffs had allowed further development contractually, the court observed no destruction or interference at the locus, and the temporary injunction granted was sufficient protection.

p. 5

Legal principles established

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  • The court will not aid parties to break contractual terms, but will also not allow illegal development even if undertaken pursuant to contractual provisions
  • Special circumstances over and above a prima facie case are required for a mandatory injunction

Court orders

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  1. 1.Temporary injunction restraining the Defendant from undertaking any further construction and/or developments on the suit property pending provision by the Defendant of evidence of compliance with all applicable laws and necessary approvals
  2. 2.Defendant at liberty to apply
  3. 3.Costs of the Plaintiffs' Notice of Motion dated 12th November 2013 to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Constitution of KenyaArticle 40
  • Land ActSection 26

Cases cited (9)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Joseph Wachira Wamuru vs Savings & Loan (K) Ltd
    (2010) eKLR
  • Republic vs Minister for Agriculture & 6 Others
    (2013) eKLR
  • Patrick Pakiro Odeke T/A Airport Africana Restaurant vs Kenya Airport Authority
    (2013) eKLR
  • Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule and 3 Others
    (2014) eKLR
  • Joan Wairimu Mbuthia & Another vs Peninah Wanjiku Mugo
    (2013) eKLR
  • Peter Kinuthia Waithaka vs Tom Ochieng T/A M’Oketchy Auctioneers & 3 Others
    (2005) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 1215
  • Kenya Breweries Ltd and another v Washington Okeyo
    (2002) 1 E.A. 109
Jurisdiction invoked
Original civil jurisdiction; application under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules

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, "Susan Mukami Kamwati & another v Elite Paka Service Limited [2014] KEELC 323 (KLR)", Case Analysis (2014). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/323/eng@2014-07-01

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