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ELCDismissedNotice of Motion dated 15th June, 2017 (suit pending)· [2018] KEELC 3594 (KLR)

Grace Kasenge Mutisya v Willy Mwanzia [2018] KEELC 3594 (KLR)

Environment and Land Court
26 April 2018
CYC. Yano
1,180 words in judgment
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The bottom line

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A Kenyan landowner could not get demolition of a neighbour's buildings ordered early, because courts only grant mandatory injunctions before trial in clear cases with special circumstances.

What this practically means

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Executive summary

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The plaintiff, Grace Kasenge Mutisya, moved the Environment and Land Court at Mombasa by Notice of Motion dated 15th June 2017 under Article 159 of the Constitution, Order 40 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an interlocutory mandatory injunction compelling the defendant to demolish buildings or structures allegedly erected on or encroaching upon Residential Plot No. 166 - Maganda S.S without the approval of the County Government of Mombasa and in contravention of the special conditions of the plot, the Physical Planning Act and county building by-laws. She relied on a letter of allotment, a surveyor's report, a demand letter, and a further affidavit exhibiting photographs of alleged structural damage. The application was unopposed, the defendant having been duly served but filing no response. Justice C. Yano held that the principles governing interlocutory mandatory injunctions differ from the Giella v Cassman Brown principles, requiring a higher standard of assurance. Relying on Locabail International Finance Ltd v Agro Export and Lucy Wangari Gachana v Minudi Okemba Love, the court found no special circumstances and no clear case suitable for summary determination; the pleadings were unclear whether the construction was on Plot No. 166 or an adjacent plot, and the annexures suggested the plot was purchased rather than allocated. The application was dismissed with no order as to costs, the court noting that demolition could still be ordered after trial if the plaintiff proved her case.

Key legal issues

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Principles for granting an interlocutory mandatory injunction

Holding

The application failed because the higher threshold for mandatory injunctions at the interlocutory stage was not met

Reasoning

The court distinguished the principles for mandatory injunctions from the Giella v Cassman Brown principles for prohibitory injunctions, holding that a higher standard applies. The plaintiff's own materials were internally inconsistent: it was unclear whether the defendant's construction was on Plot No. 166 or an adjacent plot, the photographs showed completed structures, and the annexures suggested the plot was purchased rather than allocated as pleaded. Demolition could still be granted after trial if she proved her case.

p. 2

Legal principles established

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  • An interlocutory mandatory injunction will only be granted in clear cases and where special circumstances exist, on a higher standard than for prohibitory injunctions

Court orders

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  1. 1.The Notice of Motion dated 15th June, 2017 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Article 159 of the Constitution; Order 40 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Grace Kasenge Mutisya v Willy Mwanzia [2018] KEELC 3594 (KLR)", Case Analysis (2018). Notice of Motion dated 15th June, 2017 (suit pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3594/eng@2018-04-26

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