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ELCDismissedNot stated in the judgment (Meru ELC suit concerning Abothuguchi/Ruiri/927)· [2018] KEELC 3336 (KLR)

David Kiogora Kirimania v Muringu Muchai Ikabu & another [2018] KEELC 3336 (KLR)

Environment and Land Court
18 April 2018
1,909 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court dismissed a quarry operator's bid to stop mining on leased land because he couldn't show his case would likely succeed.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Meru, delivered by Lucy N. Mbugua, ELC Judge, on 18 April 2018, determined a notice of motion dated 19 June 2017 in a suit over parcel Abothuguchi/Ruiri/927. The 1st defendant, the registered owner, had leased the land to the plaintiff by an agreement of 13 January 2016 (with an addendum of 1 July 2016) for stone excavation. The plaintiff alleged the 1st defendant unilaterally terminated the contract and brought in the 2nd defendant, and sought an order that the defendants furnish security and an injunction restraining mining on the land. The defendants admitted the agreements but asserted the plaintiff failed to pay and removed machinery, and that he came to court with unclean hands. Applying Order 40 rule (1) of the Civil Procedure Rules and the Giella v Cassman Brown test, the court held that the applicant failed to demonstrate a prima facie case: excavation was already ongoing and nothing was shown capable of preservation. Damages would suffice since the plaint sought compensation for lost earnings. The balance of convenience favoured the defendants because the plaintiff had left the site with broken machines and an injunction would effectively evict the 2nd defendant. The court also found the applicant lacked candour, having filed serial unprosecuted applications, and reiterated that an injunction is a discretionary, equitable remedy not granted as of right. The application was dismissed with costs to the respondents.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Applicant failed to demonstrate a prima facie case; the land was already being mined by the 2nd defendant and there was nothing shown to be capable of preservation.

Reasoning

The applicant admitted in his affidavit that excavation by the 2nd defendant was ongoing when he filed suit. He made no request for a site visit or assessment, so the court could not know what remained on the land capable of preservation. Against the Mrao standard, the applicant showed more than mere issues but no demonstrated infringement of a right.

p. 2
02

Irreparable damage and adequacy of damages

Holding

Damages would adequately compensate the applicant since he himself claimed compensation for lost earnings in the plaint.

Reasoning

The applicant's own pleading sought compensation for lost earnings, which undermines any claim that depletion of stones would cause irreparable injury not compensable by damages. Where damages are an adequate remedy at interlocutory stage, an injunction will not normally issue under the Giella test.

p. 2
03

Balance of convenience

Holding

Balance of convenience favoured the defendants; an injunction would effectively evict the 2nd defendant who had long been on site.

Reasoning

The applicant had left the site after his machines broke down and had not shown they were operational again. The court could not determine whether he abandoned the site or was evicted. Another party had been on the site for some time, so an injunction would amount to eviction of the 2nd defendant.

p. 3
04

Candour and clean hands of the applicant

Holding

The applicant lacked clean hands and candour: he delayed, filed serial applications without prosecuting them, and concealed his inability to resume excavation.

Reasoning

The applicant filed an application on 22.5.2017 that was not prosecuted and was withdrawn on 26.6.2017, then filed the present application on 23.6.2017. Knowing excavation was time-sensitive, he concealed that his machines remained unrepaired. Equity requires candour and clean hands from an injunction applicant.

p. 3

Legal principles established

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  • The test for an interlocutory injunction is the Giella tripartite test: prima facie case, irreparable injury not compensable by damages, and balance of convenience.
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success at trial.
  • On an interlocutory injunction application the court should not make final findings of fact on disputed affidavits but weigh the relative strength of each side's propositions.
  • An injunction is a discretionary and equitable remedy, not guaranteed as of right, and the applicant must conduct himself candidly and play above board.
  • A court should only give orders capable of being enforced; where the state of the property to be preserved is uncertain, preservation orders cannot issue.

Court orders

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  1. 1.The notice of motion dated 19.6.2017 (filed 23.6.2017) is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 rule (1)

Cases cited (17)

  • Panari versus Mrs. Lijoodi & 2 others
    Nai. ELC 779/2013
  • James Thungu versus County Government of Transzoia and 2 others
    Kitale ELC No. 31 of 2015
  • Mrao versus First American Bank & 2 Others
    (2003) KLR 125
  • Tritex Industries LTD & 3 others versus National Housing Corporation & Another
    Mombasa HCCC No. 8 of 2011
  • Alghussein Establishment versus Eton College
    (1991) 1 All ER 267
  • Aida Nunes versus J.M.N Njonjo & C. Kigwe
    (1962) EA 89
  • Joseph Wachira Wamuru versus Savings & Loan (K) Ltd
    (2010) eKLR
  • National Bank of Kenya LTD versus Pipelastic Samkolit (K) Ltd and Another
    (2002) EA 503
  • Nakana Trading Co. Ltd versus Coffee Marketing Board
    1990-1994 EA 448
  • Edward Mugambi versus Jason Mathiu
    (2007) eKLR
  • Purple Rose Trading Company Limited versus Bhanoo Shashikant Jai
    (2014) eKLR
  • Fina Bank Ltd versus Spares and Industries Ltd
    (2000) 1 EA 52
  • Apollo Onyango Njago & another versus Savings & Loan Kenya Limited
    (2012) eKLR
  • Giella versus Cassman Brown and Co. Ltd
    (1973) E.A 358
  • Charter house investment Ltd vs Simon K. Sang & 3 Others
    (2010) eKLR
  • Hassan Zubeidi versus Patrick Mwangangi Kibaiya & Another
    (2014) eKLR
  • Mbuthia versus Jimba Credit Corporation and another
    1988 KLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 40 rule (1) of the Civil Procedure Rules 2010

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, "David Kiogora Kirimania v Muringu Muchai Ikabu & another [2018] KEELC 3336 (KLR)", Case Analysis (2018). Not stated in the judgment (Meru ELC suit concerning Abothuguchi/Ruiri/927). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3336/eng@2018-04-18

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