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ELCDismissedNotice of Motion dated 14th July 2016 (further amended plaint dated 1st April 2015)· [2017] KEELC 2303 (KLR)

Murigi v Sauer & 2 others (Miscellaneous Succession Cause 432 of 2010) [2017] KEELC 2303 (KLR)

High Court of Kenya
30 May 2017
CYC. Yano
2,671 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 ruled that a property owner cannot force an occupant out or make them pay rent through a temporary injunction before the full case is heard.

What this practically means

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Executive summary

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The plaintiff, claiming a beneficial interest in sub-division No. 3336 (Original No. 1139/1) Mtwapa as wife to the 1st defendant, moved the court by Notice of Motion dated 14th July 2016 under sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 Rule 7 of the Civil Procedure Rules. She sought implementation, with variations, of an order made by Mukunya, J on 12th July 2013 directing that the suit premises be rented out and proceeds deposited in a joint interest-earning account. She asked the court to appoint a valuer to fix monthly rent, to compel the 4th defendant - a foreigner who had purchased the property from the 1st defendant and occupied it since December 2013 as an alleged innocent purchaser without notice - to vacate to facilitate leasing, or alternatively to pay monthly rent from 1st September 2014. The 4th defendant opposed, contending he was not a party when the 2013 order issued, that he purchased with due diligence and without notice, that no tenancy existed, that there was inordinate delay, that a mandatory injunction required special circumstances, and that the 2013 orders had lapsed under Order 40 Rule 6. Justice C. Yano framed a single issue: whether the plaintiff was entitled to reliefs which, in substance, were a mandatory injunction that would virtually dispose of the suit against the 4th defendant at the interlocutory stage. Applying the settled principles from Kenya Breweries v Okeyo, Locabail, Shepherd Homes and Kenya Airport Authority v Muigai, the court held the plaintiff's case was not clear or plain, that ordering vacatur or rent would amount to a final determination before trial, and that the rent claim was quantifiable at trial. The motion was dismissed with costs to the 4th defendant.

Key legal issues

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Whether a temporary mandatory injunction directing the 4th defendant to vacate the suit property and pay rent could be granted at the interlocutory stage

Holding

The application was dismissed; the plaintiff's case did not meet the settled principles for grant of a mandatory injunction, and granting the orders would have disposed of the suit substantially at the interlocutory stage

Reasoning

The court applied the principles in Halsbury's Laws, Locabail, Shepherd Homes and Kenya Breweries, which require special circumstances and a clear case before an interlocutory mandatory injunction is granted. Both parties claim competing interests in the suit property - the plaintiff as a wife of the 1st defendant, the 4th defendant as innocent purchaser without notice in occupation since December 2013. Ordering vacatur or rent payment would leave nothing to await in the main suit, and the rent claim is quantifiable at trial.

p. 5

Legal principles established

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  • A mandatory injunction will not 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 have been rightly granted
  • An order granting a major relief claimed in the suit ought not to be granted at an interlocutory stage

Court orders

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  1. 1.The Notice of Motion dated 14th July 2016 be and is hereby dismissed with costs to the 4th defendant

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(b), (c) and (e)
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 40 Rule 6

Cases cited (6)

  • Bernadatte Wangare Muriu v National Social Security Board Of Trustees & 2 Others
    (2012) eKLR
  • Kenya Breweries Ltd And Another v Washington Okeyo
    (2002) eKLR
  • Locabail International Finance Ltd v Agroexport And Others
    (1986) ALL ER 901
  • East African Fine Spinners Ltd (in Receivership) & 3 Others v Bedi Investiments Ltd
    Civil App Nai.72/94 (UR)
  • Shepherd Homes Ltd v Sandham
    (1971) I CH. 34
  • Kenya Airport Authority v Paul Njogu Muigai & 2 Others
    Civil Application No. Nai.29/97 (UR)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(b), (c) and (e) of the Civil Procedure Act and Order 40 Rule 7 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, "Murigi v Sauer & 2 others (Miscellaneous Succession Cause 432 of 2010) [2017] KEELC 2303 (KLR)", Case Analysis (2017). Notice of Motion dated 14th July 2016 (further amended plaint dated 1st April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2303/eng@2017-05-30

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