David Kiogora Kirimania v Muringu Muchai Ikabu & another [2018] KEELC 3336 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
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.
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.
Irreparable damage and adequacy of damages
Damages would adequately compensate the applicant since he himself claimed compensation for lost earnings in the plaint.
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.
Balance of convenience
Balance of convenience favoured the defendants; an injunction would effectively evict the 2nd defendant who had long been on site.
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.
Candour and clean hands of the applicant
The applicant lacked clean hands and candour: he delayed, filed serial applications without prosecuting them, and concealed his inability to resume excavation.
The applicant filed an application on 22.5.2017 that was not prosecuted and was withdrawn on 26.6.2017, then filed the present application on 23.6.2017.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.
Legal principles established
#- 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
#- 1.The notice of motion dated 19.6.2017 (filed 23.6.2017) is dismissed
- 2.Costs of the application awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.