Gitonga Daniel Mbaabu v Wambui Wainana & another [2017] KEELC 2607 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a mandatory injunction to reinstate tenancy could issue at the interlocutory stage
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.
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.
Whether the reference in BPRT No. 50 of 2016 operated as an automatic stay of distress
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.
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.
Whether the 2nd defendant lacked a valid auctioneer's licence for 2017
The applicant failed to discharge the burden of proof, offering no documentary evidence from the Auctioneers' Licensing Board.
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.
Legal principles established
#- 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
#- 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.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.Each party to bear their respective costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 and 50 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.