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ELCDismissed· [2017] KEELC 3399 (KLR)
Godfrey Lumanyi Namumbastsi & another v James Mwangi & 2 others [2017] KEELC 3399 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The applicants, joint owners of LR Nos. Ngong/Ngong/34557 and 34558, filed a Notice of Motion dated 10th November 2015 seeking interlocutory orders compelling the first Respondent, owner of the adjacent LR No. Ngong/Ngong/33003, to reconstruct a collapsed perimeter/holding wall, and requiring the second Respondent (established under the Environmental Management and Co-ordination Act) and third Respondent (established under the National Construction Authority Act) to oversee and supervise the reconstruction. The applicants attributed the collapse to poor workmanship on a retention wall built by the first Respondent; he contended it was a perimeter fence weakened by soil accumulated from the applicants' plots and improper discharge of storm water. The regulatory bodies denied any mandate to supervise construction of private walls. The court framed the issue as whether the applicants had made out a case for a mandatory injunction at interlocutory stage. Applying Halsbury's Laws of England Volume 24, the Court of Appeal decision in Kenya Airports Authority vs Paul Njogu Mungai, and the caution in Shephard Homes Vs Sandham as adopted in Locabail International Finance, the court held that the presence of serious contested facts and the fact that the prayers mirrored the main claim meant the relief could not be granted at the interlocutory stage. The applicants were also found not to have demonstrated a prima facie case with probability of success as defined in Mrao Ltd. The application was dismissed with costs to the respondents on 20th February 2017.
Key legal issues
#01
Whether a temporary mandatory injunction should issue at the interlocutory stage
Holding
It should not, because there are serious contested facts and the prayers mirror the main claim; the applicants also failed to demonstrate a prima facie case with probability of success
Reasoning
The court applied the Halsbury's principles and the Shephard Homes/Locabail caution that a mandatory injunction granting the major part of the relief claimed should be approached with caution. The dispute over whether the structure was a perimeter wall or retention wall, and the cause of its collapse, required trial. The applicants did not establish a prima facie case with probability of success.
p. 3
Legal principles established
#- A mandatory injunction will only be granted at interlocutory stage in the absence of special circumstances if the case is clear, can be decided at once, is simple and summary, or where the defendant attempts to steal a march on the plaintiff
- An application for a mandatory injunction which would amount to the grant of a major part of the relief claimed in the action should be approached with caution and granted only in a clear case
- A prima facie case is higher than an arguable case; the evidence must show infringement of a right and probability of success upon trial
Court orders
#- 1.The applicants' application for a temporary mandatory injunction is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Not expressly stated; original jurisdiction of the Environment and Land Court over a pending main suit concerning land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Lumanyi Namumbastsi & another v James Mwangi & 2 others [2017] KEELC 3399 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3399/eng@2017-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.