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ELCPartially AllowedApplication dated 2nd February 2017 in HCCC (Mombasa)· [2017] KEELC 1390 (KLR)

Upperview Properties Limited v Imperial Bank Limited (In Receivership) [2017] KEELC 1390 (KLR)

High Court of Kenya
13 October 2017
6,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered Imperial Bank, in receivership, to keep paying rent to KCB while a property ownership dispute goes to trial.

What this practically means

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Executive summary

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Sandview Properties Limited, the registered proprietor of Mombasa/Block XXVI/25, brought a Notice of Motion under Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking a mandatory injunction compelling Imperial Bank Limited (In Receivership), its former landlord-tenant, to pay accrued rents and mesne profits in respect of its tenancy to Kenya Commercial Bank, the chargor of the property. Sandview alleged the property was purchased in 2009 for Kshs. 87,000,000 in a sale and lease-back, later charged to KCB in 2015, and that Imperial Bank, having refused to execute a fresh lease and asserting beneficial ownership based on fraudulently declared dividends, had become a trespasser owing Kshs. 84,339,682 exclusive of VAT. Imperial Bank opposed, contending the title was acquired with fraudulently paid dividends during a loss-making period, that no special circumstances justified a mandatory injunction at the interlocutory stage, and that granting the orders would depress its assets and harm depositors. The court applied the principles for mandatory injunctions from Kenya Breweries v Okeyo, Locabil, Magnate Ventures and Giella v Cassman Brown. It found the applicant had a prima facie case as registered proprietor without making conclusive findings on the fraud allegations, that the applicant would suffer irreparable harm through possible foreclosure, and that the case was simple and summary since no court had terminated the landlord-tenant relationship. The court granted the mandatory injunction in terms of prayer No. 5 only, ordering continued remittance of rents to KCB pending the hearing of the suit, with each party bearing its own costs.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

Yes - on the face of the certificate of lease the applicant, as registered owner, has a prima facie case; the court made no conclusive finding on ownership given the fraud allegations requiring trial

Reasoning

The applicant produced a certificate of lease showing it is the registered proprietor of the suit property. Although the respondent alleged the title was acquired through fraudulently declared dividends, conclusive investigations were not complete and fraud issues require evidence and cross-examination at a full trial. The court therefore declined to make conclusive findings on proprietorship but found the registered owner had a prima facie case with a probability of success.

p. 10
02

Whether the applicant would suffer irreparable harm if the injunction is not granted

Holding

Yes - the applicant is servicing the KCB charge while the respondent enjoys possession, and non-payment risks foreclosure

Reasoning

The suit property is charged to Kenya Commercial Bank for a loan of Kshs. 250,000,000 and rent was assigned to the bank. If rents are not remitted, the applicant continues servicing the loan while the respondent occupies the property, and the debt could balloon through interest and penalties, enabling the chargor to exercise its statutory power of sale before the hearing of the suit, occasioning the applicant irreparable harm.

p. 10
03

Whether special circumstances exist warranting a mandatory injunction at the interlocutory stage, and where the balance of convenience lies

Holding

Yes - the case is simple and summary since the landlord-tenant relationship has not been terminated by any court, and refusing payment would allow the respondent to steal a march; preservation of the property serves both parties

Reasoning

No court or tribunal has declared the landlord-tenant relationship illegal or terminated it, and even without a signed new lease the relationship continues under the Land Act on the basis of the previous mode of rent payment. If the charge is not serviced, interest and penalties would balloon and the statutory power of sale could be exercised before trial, equating to stealing a march. Preservation of the suit property is in the interest of both sides.

p. 11

Legal principles established

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  • A mandatory injunction can be granted on an interlocutory application in the absence of special circumstances only where the case is clear and ought to be decided at once, the act done is simple and summary and easily remedied, or the defendant attempted to steal a march on the plaintiff
  • Before granting a mandatory injunction the court must feel a high sense of assurance that at the trial the injunction would appear to have been rightly granted, a higher standard than for a prohibitory injunction
  • The decision to grant a mandatory injunction at the interlocutory stage depends on the discretion of the judge, decided on the peculiar facts of each case
  • A trial court must avoid making conclusive findings of fact before they are tested in cross-examination

Court orders

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  1. 1.A mandatory injunction issued in terms of prayer No. 5 of the motion, compelling the Respondent pending the hearing and determination of the suit to pay the rents due in respect of its tenancy of the suit property Mombasa/Block XXVI/25 to the Kenya Commercial Bank Limited, the chargor of the suit property
  2. 2.Each party to meet their respective costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 4, 11
  • Land Registration ActSection 26(1); Section 30(3)
  • Land ActSections 39, 40, 41, 42
  • Evidence ActSection 121
  • Banking ActSection 12; Section 11C
  • Companies Act 2015Section 487(3)(d)
  • Kenya Deposit Insurance Act (Cap 487C)Sections 44(2)(b), 45(3)(a), 45(6)
  • Constitution of KenyaArticle 40(6)
  • Central Bank of Kenya Prudential GuidelinesNo. 2.3, 3.1, 3.2.1.1, 3.2.1.8, 3.2.1.9, 3.2.2.8

Cases cited (14)

  • Gusii Mwalimu Investment Company and Another versus Mwalimu Hotel Kisii Ltd
    [1995-1998] 2EA 100
  • Kenya Breweries Limited and Another versus Washington O. Okeyo
    [2000] Civil Appeal No. 332 (UR)
  • Udaypratap Sing Deo & Others versus Krushna Padhano
    AIR 1952 OR1 95
  • Bansraj Laltraprasad Mishra versus Stanley Parker Jones
    Supreme Court of India Civil Appeal No. 6396 of 2001
  • Nguku versus Republic
    Criminal Appeal No. 106 of 1983
  • Bond versus Barrow Haematite Steel Company
    [1901] B 2232
  • Lee versus Asphalte Co.
    (41 Ch. D at pp 15, 16 and 18)
  • Re National Bank of Wales Ltd Cory's Case
    [1899] 2 Ch 715
  • H.L. Bolton (Engineering) Co. Ltd versus C.A.T.J. Geaham & Sons Ltd
  • Locabil International Finance Ltd versus Argo Export & Another
    [1986] ALL ER 901
  • Magnate Ventures Limited versus Eng. Kenya Limited
    [2009] KLR 538
  • Giella versus Cassman Brown
    [1973] EA 358
  • Alex Wainaina t/a John Commercial Agencies versus Janson Mwangi Wanjihia
    [2015] eKLR
  • Kenya Railways Corporation versus Thomas Ngutu & Others
    [2009] eKLR
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 40 Rules 1, 2, 4, 11 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, "Upperview Properties Limited v Imperial Bank Limited (In Receivership) [2017] KEELC 1390 (KLR)", Case Analysis (2017). Application dated 2nd February 2017 in HCCC (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1390/eng@2017-10-13

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