Espere Kenya Limited v Sam Mureithi [2017] KEELC 2674 (KLR)
The bottom line
#A Kenyan landowner claiming trespass lost because it brought an injunction application without key documents like a fresh official land search.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with probability of success
No. The Plaintiff produced uncertified documents, no recent official search, no copy of the alleged Letter of Allotment the Defendant was armed with, and no evidence of the semi-permanent structure attributed to the Defendant.
The court weighed the Supporting Affidavit of Ruth Gathoni against the Defendant's Replying Affidavit denying any connection to the suit property. It noted the absence of a recent official search from the Ministry of Lands, uncertified documents, no annexed Letter of Allotment allegedly held by the Defendant, and no photographic evidence of the structure. On that material, no apparent infringement of a right was established.
Whether special circumstances justified a mandatory injunction at the interlocutory stage
No. The Plaintiff failed to show special circumstances, that the case was simple and decidable at once, or that the Defendant was stealing a march.
Applying the Triton Service Station and Locabail principles, the court required a high degree of assurance before granting a mandatory injunction. Since there was no evidence of the semi-permanent structure or of the Defendant's construction of it, the mandatory injunction could not issue. Having failed the first Giella limb, the court declined to consider the remaining limbs.
Whether the Plaintiff's advocates were properly on record
No company resolution appointing the advocates was annexed; the advocates were not properly on record.
The Defendant submitted that the Plaintiff's company did not annex a company resolution appointing its advocates. The court perused the annextures to the Notice of Motion and confirmed no such resolution existed. This was an additional evidentiary deficiency noted by the court in assessing the application.
Legal principles established
#- The grant of an injunction is a discretionary equitable remedy that must be exercised judicially
- A mandatory injunction may not be granted at the interlocutory stage absent special circumstances, in clear cases, or where the defendant is stealing a march, and the court must feel a high degree of assurance
- Where the applicant fails to establish a prima facie case with probability of success, no interlocutory injunction is available and the court need not consider the other conditions sequentially
Court orders
#- 1.The Notice of Motion dated 6th February 2017 is dismissed entirely with costs to the Defendant/Respondent
- Jurisdiction invoked
- Original civil jurisdiction; application anchored on Article 40 of the Constitution and Order 40 Rules 1, 2 and 4 and Order 41 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Callen Gatune Francis v Tharaka Nithi County Public Service Board & another [2018] KEELRC 2317 (KLR)[2018] KEELRC 2317 (KLR)20 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Espere Kenya Limited v Sam Mureithi [2017] KEELC 2674 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2674/eng@2017-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.