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ELCPartially AllowedCivil Appeal No 131 of 2003· [2018] KEELC 1396 (KLR)

Bikabhai Mathurbabhai Patel & 4 others v Samuel Ntarangwi Mbiriga & 7 others [2018] KEELC 1396 (KLR)

Environment and Land Court
29 September 2017
791 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a 2003 injunction because the magistrate never applied the established three-step test before blocking the property owners.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against a ruling of the Senior Resident Magistrate (Hon. N.B.K.W Nyamate Gandah, SRM) delivered on 28 October 2003, allowing the Respondents' application under Order XXXIX Rules 1 and 2 CPR (now Order 40) and restraining the Appellants from interfering with their businesses on plot No. Meru Municipality Block 11/50. The Appellants advanced six grounds, principally that the magistrate granted the injunction despite a High Court order of 26 March 1998 in Meru HCC No. 124/97 appointing a receiver manager (first S. K. Mburu, later Henry Kuthima) to collect rents on the suit property, that the Respondents had no prima facie case, and that the magistrate wrongly injuncted the registered proprietors and barred distress for rent. The appeal was disposed of by written submissions, though only the Appellants' counsel filed submissions. E. C. Cherono, ELC J, held that the magistrate failed to apply the Giella v Cassman Brown principles before issuing the restraining orders, that the High Court orders were clear that all rents were to be collected by the receiver manager, and that the Respondents neither challenged those orders nor showed payment of rent to the receiver or any person authorized in law. The appeal succeeded; the orders of 28 October 2003 were set aside and the Appellants were awarded the costs of the appeal.

Key legal issues

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01

Whether the trial magistrate's injunction satisfied the Giella principles

Holding

The appeal succeeds because the magistrate did not apply the Giella principles before granting the restraining orders

Reasoning

The court held that the magistrate granted the injunction without first considering whether the Respondents had established a prima facie case with a probability of success, whether damages would be an adequate remedy, and, if in doubt, the balance of convenience. The Respondents also failed to demonstrate they had paid rent to the appointed receiver manager, contrary to the High Court order in HCCC No 124/97.

p. 2
02

Effect of the High Court receiver manager order in HCCC No 124/97

Holding

All rent payments over plot Meru Municipality/Block 11/50 were to be collected by the appointed receiver manager, and the Respondents did not challenge those orders or comply with them

Reasoning

A receiver manager, first S. K. Mburu and later Henry Kuthima, was appointed by the High Court to collect rents until the suit was heard and determined. The Respondents did not challenge the averments and orders in their further affidavit, nor show they paid rent to the receiver or any person authorized in law.

p. 2

Legal principles established

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  • Before issuing injunction orders a court must satisfy itself on the Giella v Cassman Brown principles: prima facie case with probability of success, inadequacy of damages, and balance of convenience where the court is in doubt
  • Orders of a superior court appointing a receiver manager to collect rents are clear and self-explanatory and bind those who pay rents over the suit property

Court orders

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  1. 1.The orders issued by the learned magistrate on 28/10/2003 are set aside
  2. 2.The appeal succeeds
  3. 3.The Appellants shall have the costs of the Appeal

Authorities

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Legislation

  • Civil Procedure Rules (CPR)Order XXXIX Rules 1 and 2 (now Order 40)

Cases cited (1)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
On appeal from
Meru Law Courts (Senior Resident Magistrate's Court)
Ruling delivered in an application under Order XXXIX Rules 1 and 2 CPR (now Order 40)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court

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, "Bikabhai Mathurbabhai Patel & 4 others v Samuel Ntarangwi Mbiriga & 7 others [2018] KEELC 1396 (KLR)", Case Analysis (2017). Civil Appeal No 131 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1396/eng@2018-09-29

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