Dipa Pulling v Suchan Investments Limited & 3 others [2017] KEELC 3297 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant established a prima facie case against the 1st Defendant
The court doubted the merit of the 2nd Defendant's case; it was neither pleaded nor established on a prima facie basis, and the 2nd Defendant had filed no pleadings since being joined as a defendant
The 2nd Defendant was joined as a defendant in 2010 with leave to file pleadings but filed none. He put forward no claim against the 1st Defendant and no defence to the counter-claim, so the issues between them could not be ascertained. He had also consented in HCCC No. 364 of 2004 to the sale of the suit property, undermining any challenge to the 1st Defendant's title. Without pleaded issues or an apparent infringement of a right, the Giella prima facie test failed.
Whether irreparable harm was shown
Having doubted the prima facie case, the court equally doubted the risk of irreparable harm, moving the application to the balance of convenience
The injunction principles in Giella are sequential; where the first two limbs fail, the application falls for consideration on the balance of convenience. The court found that the 2nd Defendant, holding 25%, was entitled to occupy, while the 1st Defendant, holding 50% pending any declaration of illegality, was entitled to the rights of ownership provided the other owners' rights were respected.
Whether the 1st Defendant's forceful entry and fencing affected the orders to be made
Although not asked to order demolition of the wall or eviction, the court condemned the forceful self-help entry and ensured no further interference with the 2nd Defendant's occupation
The evidence showed the 1st Defendant entered in March 2016 and fenced a portion forcefully using hired men. The court invoked Kamau Mucuha v The Ripples Ltd and Jaj Superpower to hold that a wrongdoer cannot retain an advantage gained by unlawful acts. It declined, however, to order demolition or eviction since no such relief was sought, but tailored orders to preserve the status quo and direct rents into a joint account.
Legal principles established
#- A temporary injunction applicant must establish a prima facie case with a probability of success and irreparable harm not compensable in damages
- Under Order 40 of the Civil Procedure Rules, a temporary injunction may issue to a Defendant as well as a Plaintiff if the conditions are met
- A party must not be allowed to retain an advantage obtained through a planned and blatant unlawful act; self-help in land disputes is condemned
- A registered co-proprietor may not unilaterally excise and fence a portion of undivided land when he has himself sought partition through a counter-claim
Court orders
#- 1.Pending the hearing and determination of the suit or further orders, the 1st Defendant is restrained from demolishing buildings and/or structures on L.R No. 209/1916/6 and from interfering with the 2nd Defendant's possession and enjoyment of the portion in his possession as of the date of the ruling
- 2.Pending the hearing and final determination of the suit or further orders, the 1st Defendant is restrained from carrying out any other or further construction or development on L.R No. 209/1916/6 or any portion thereof
- 3.All rent collected from the suit property shall, with effect from 1st April 2017, be deposited in an interest-earning joint bank account in the names of the advocates on record for the Plaintiff, 1st and 2nd Defendants
- 4.The orders granted shall last for eight (8) months only, within which the parties must prepare and set down the case for hearing and final determination
- 5.The costs of the application shall be in the cause
- Jurisdiction invoked
- Inherent powers of the High Court/ELC under Order 40 of the Civil Procedure Rules (temporary injunction application within a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dipa Pulling v Suchan Investments Limited & 3 others [2017] KEELC 3297 (KLR)", Case Analysis (2017). Nairobi ELC Case (suit filed 29th April 2008; application Notice of Motion dated 23rd March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3297/eng@2017-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.