Vital Plantation Lease Company Limited & another v Fresco Bushlands (K) Limited& another [2017] KEELC 2200 (KLR)
The bottom line
#Two companies lost their bid to protect a vast plantation because they couldn't prove who actually held rights to the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case for interlocutory injunctive relief
They did not; the lease was between the 1st Plaintiff and the 2nd Defendant only, and nothing demonstrated the 2nd Plaintiff's vested interest in the suit land
The court examined the pleadings and found the executed lease was between the 1st Plaintiff and the 2nd Defendant, while the 1st Defendant held a separate lease. No evidence of affiliation between the Plaintiffs or of the 2nd Plaintiff's interest was placed before the court, so the applicants failed the threshold in Giella and Nguruman.
Whether the court could issue an injunction conflicting with existing High Court orders in High Court Civil Case No. 123 of 2013
It could not, as those orders remain valid and have neither been discharged nor set aside
The 1st Defendant had obtained orders in the High Court barring the 2nd Defendant from disturbing its leasehold interests. Since those orders subsisted, granting the injunction sought would require the 2nd Defendant to violate subsisting court orders, which the court declined to do.
Whether the court could consider a mandatory injunction pending the proposed Arbitration
It could not, because Section 6 of the Arbitration Act bars the court from delving into the merits of a referred dispute
The dispute between the 1st Plaintiff and the 2nd Defendant had already been referred to arbitration in ELC No. 95 of 2014, and those orders had not been discharged. The court therefore could not interrogate the merits or the applicants' chances of success to justify the injunction.
Legal principles established
#- The conditions for the grant of an interlocutory injunction are a prima facie case with a probability of success, irreparable injury not compensable by damages, and if in doubt, the balance of convenience
- A prima facie case is one where, on the material presented, the court concludes a right has apparently been infringed so as to call for an explanation or rebuttal
- The party asserting a prima facie case must show a clear and unmistakable right directly threatened by the act sought to be restrained
Court orders
#- 1.The application dated 13th July 2016 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interlocutory injunctive relief in a suit before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vital Plantation Lease Company Limited & another v Fresco Bushlands (K) Limited& another [2017] KEELC 2200 (KLR)", Case Analysis (2017). Malindi ELC (Notice of Motion dated 13th July 2016 within the suit filed 14th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2200/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.