Mohamed Rafiq Sadik v David Kinyua Mbiko & another [2016] KEELC 937 (KLR)
The bottom line
#Kenya's High Court refused to force Mombasa tenants out over an untested safety report, warning landlords not to use injunctions to sidestep eviction procedures.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction vis-à-vis the Business Premises Tribunal
The preliminary objection was treated as abandoned for want of submissions, though the court observed the Tribunal may grant the orders sought
The respondents filed a preliminary point of law contending the court lacked jurisdiction but did not submit on it. The judge therefore treated the objection as abandoned, while noting in passing that the Business Premises Tribunal might have jurisdiction over the pleaded orders.
Whether a mandatory injunction should issue compelling evacuation of the suit premises
No. The application failed the 'clear case' test for mandatory injunctions and was dismissed with costs
The safety report was prepared at the applicant's own request, was untested by cross-examination, and was not conclusive. The applicant did not show when the building became unsafe, did not serve notice to terminate the lease, and made no provision for the respondents to recover monies spent repairing the roof after the fire. The court found the application an attempt to terminate the tenancy unprocedurally, an abuse of process undeserving of an equitable remedy.
Legal principles established
#- A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and only in clear cases, where the court feels a high sense of assurance that at trial the injunction would appear to have been rightly granted
Court orders
#- 1.The application dated 21.12.15 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Order 40 rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Rafiq Sadik v David Kinyua Mbiko & another [2016] KEELC 937 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/937/eng@2016-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.