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ELCPartially AllowedNot stated in the judgment (application dated 30th March 2017)· [2017] KEELC 2607 (KLR)

Gitonga Daniel Mbaabu v Wambui Wainana & another [2017] KEELC 2607 (KLR)

High Court of Kenya
13 June 2017
2,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court reinstated a tenant pending trial but refused full mandatory relief because the tenant couldn't prove an eviction actually happened.

What this practically means

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Executive summary

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The plaintiff, asserting he was deemed a tenant of the suit premises BLOCK MOMBASA XVI/154 following his late father's tenancy, moved the court by notice of motion dated 30th March 2017 seeking prohibitory orders and mandatory injunctions to reinstate his tenancy and compel return of goods carted away during a distress for rent executed on 27th March 2017. He argued the distress and resulting eviction were unlawful, null and void, that the stay order in Misc Application No. 79 of 2017 had been served, that a reference under Section 6 of Cap 301 operated as an automatic stay, and that the 2nd defendant, the auctioneer, lacked a 2017 licence. The defendants opposed, contending the distress was lawfully conducted under the Auctioneers Act, the premises were left unoccupied after the occupants fled, and the plaintiff was a vexatious litigant with parallel proceedings pending. The court framed the question as whether mandatory injunction orders could issue at the interlocutory stage. It held that the reference in BPRT No. 50 of 2016 was worded to prohibit eviction only and that the Tribunal was the proper court to interpret its own order; that the stay in Misc No. 79 of 2017 stayed the break-in process, not the distress; that there was no order barring distress; and that the applicant failed to prove lack of the auctioneer's licence or an eviction, the premises appearing to have been merely secured after being left vacant. Applying the settled test that mandatory injunctions require clear circumstances, and the burden-of-proof rules in Sections 107-109 of the Evidence Act, the court granted only prayers 3 and 5 - a prohibitory order over the suit premises and a mandatory injunction reinstating the tenancy pending determination of the suit - and ordered each party to bear their respective costs.

Key legal issues

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01

Whether a mandatory injunction to reinstate tenancy could issue at the interlocutory stage

Holding

The court granted prayers 3 and 5 (prohibitory order and mandatory injunction pending determination of the suit) but declined to find that an eviction occurred; the circumstances were not sufficiently clear for the full mandatory relief at this stage beyond those prayers.

Reasoning

The court applied the settled test that mandatory injunctions require clear circumstances. On the affidavits, the premises appeared to have been left unoccupied after the occupants fled during the distress, and the 1st defendant secured the premises. The court could not conclude on the papers that an eviction had taken place, leaving the plaintiff to challenge the distress at trial. It nonetheless granted the prohibitory order and reinstatement injunction pending the hearing of the suit.

p. 4
02

Whether the reference in BPRT No. 50 of 2016 operated as an automatic stay of distress

Holding

The reference was worded to prohibit eviction only, and the appropriate court to interpret whether it acted as a stay is the Tribunal that issued the order.

Reasoning

The court examined the reference and found it worded to prohibit eviction, not distress. It declined to interpret the Tribunal's own order, holding that the Tribunal is empowered to punish for contempt and to make orders on its execution process. The court proceeded on the premise that the stay in Misc Application No. 79 of 2017 stayed the break-in process, not the levying of distress.

p. 3
03

Whether the 2nd defendant lacked a valid auctioneer's licence for 2017

Holding

The applicant failed to discharge the burden of proof, offering no documentary evidence from the Auctioneers' Licensing Board.

Reasoning

Applying Sections 107-109 of the Evidence Act, the court held that the burden of showing the 2nd defendant was unauthorized lay on the applicant, who annexed no evidence from the Licensing Board. The issue could also be dealt with at the main trial.

p. 4

Legal principles established

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  • Mandatory injunctions at interlocutory stage are granted only where the circumstances of the case are clear
  • He who alleges a fact must prove it, per Sections 107-109 of the Evidence Act

Court orders

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  1. 1.Prayer no. 3 of the motion granted - a prohibitory order restraining the defendants from dealing with, letting or parting with possession of BLOCK MOMBASA XVI/154 pending the hearing and determination of the suit
  2. 2.Prayer no. 5 of the motion granted - a mandatory injunction compelling the 1st defendant to reinstate the plaintiff's tenancy on BLOCK MOMBASA XVI/154 pending the hearing and determination of the suit
  3. 3.Each party to bear their respective costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40, Order 50
  • Evidence ActSections 107-109
  • Cap 301 (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act)Section 6
  • Auctioneers ActNot specified

Cases cited (3)

  • MACTOY VS UNITED AFRICA CO LTD
    (1963) 3 ALL ER 119
  • OFFICIAL RECEIVER AND PROVISIONAL LIQUIDATOR NYAYO BUS CORPORATION VS FIRESTONE EA LTD
    COURT OF APPEAL NO. 172 OF 1998
  • BELLE MANSION LTD VS YAYA TOWERS LTD
    CASE NO. 225 OF 1992
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 and 50 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, "Gitonga Daniel Mbaabu v Wambui Wainana & another [2017] KEELC 2607 (KLR)", Case Analysis (2017). Not stated in the judgment (application dated 30th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2607/eng@2017-06-14

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