Fuji King Motors Limited v Ganjoni Properties Limited & another [2018] KEELC 3640 (KLR)
The bottom line
#A Mombasa court protected a new tenant's occupation of leased premises, refused jail terms over conflicting court orders, and ordered vehicles removed within five days.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to interlocutory injunction
Plaintiff satisfied the Giella test: prima facie case with probability of success, irreparable damage not quantifiable in damages, and balance of convenience favouring the plaintiff in occupation
The plaintiff had a running lease over both plots entered into when the premises were vacant and was in occupation; the 2nd Defendant had already been evicted. The damage from eviction (loss of customers, inability to relocate hundreds of vehicles) could not be adequately compensated. The court held it fair to maintain the status quo pending trial of the main dispute over entitlement to lease. No material non-disclosure was found against the plaintiff.
Alleged contempt of the order of 1.2.2018
Contempt not proved; the existence of a separate conflicting order in HCCC No.158 of 2014 meant the court could not safely find disobedience
The court applied the elevated standard of proof in contempt matters, given their criminal character and potential loss of liberty. Because the 2nd Defendant held a reinstatement order from the High Court that conflicted with this court's injunction, the court could not be satisfied beyond any shadow of a doubt that the directors and OCS wilfully disobeyed the order of 1.2.2018.
Mandatory injunction to remove vehicles
Granted on the higher Locabail standard, as a clear case capable of summary decision, since the vehicles were placed on the premises after the restraining orders
The court distinguished the standard for interlocutory mandatory injunctions from the Giella test, requiring special circumstances, clear cases, or a high sense of assurance. Here the vehicles were driven onto Plot 350 after the court had issued restraining orders, and the plaintiff was leased both plots, so the matter could be decided at once in a summary manner.
Jurisdiction to transfer/consolidate a High Court suit
Declined; the ELC cannot intrude into a matter pending before the High Court
The ELC is established under Article 162(2)(b) as a superior court with separate and distinct original jurisdictional competence. Despite having the status of a High Court, it lacks supervisory jurisdiction over the High Court, so it cannot call for or transfer a pending High Court file. The plaintiff's transfer/consolidation prayer therefore failed.
Legal principles established
#- The ELC, although of the same status as the High Court, is a separate and distinct superior court with its own jurisdiction and cannot issue orders in respect of a matter pending before the High Court
- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.The Notice of Motion dated 31st January, 2018 is allowed in terms of prayers 3 and 4 thereof (interlocutory injunction maintained)
- 2.The Notice of Motion dated 7th February, 2018 (to set aside the interim injunction) is dismissed
- 3.The Notice of Motion dated 13th February, 2018 is allowed in terms of prayers 4 and 5 to the extent that the 2nd Defendant is to remove its motor vehicles within five (5) days, in default of which the Plaintiff may remove them from the premises
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court); orders sought under Sections 1A and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fuji King Motors Limited v Ganjoni Properties Limited & another [2018] KEELC 3640 (KLR)", Case Analysis (2018). ELC Case (Mombasa) – Plaintiff's Application dated 31/1/2018; 2nd Defendant's Application dated 7/2/2018; Plaintiff's Application dated 13/2/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3640/eng@2018-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.