Apex Advancement Limited v Simple Homes Development Consortium Limited & 3 others [2018] KEELC 3878 (KLR)
The bottom line
#A Kenyan court dismissed a developer's bid to stop a property marketer from collecting public money, ruling the developer provided allegations without evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff met the threshold for a temporary prohibitory injunction
The Plaintiff failed to establish a prima facie case or irreparable harm
The court found that although the agreement of 1st February 2016 and its addendum were admitted, the Plaintiff made mere allegations without proof. There was no evidence that the 1st Defendant received payments on behalf of the Plaintiff, no particulars of purchasers or payments, no particulars of defrauded developers, and no evidence of a threat of litigation. Having failed on the first and second Giella conditions, the application could not succeed.
Whether a temporary mandatory injunction should issue
No, as no special circumstances were established and the case was not unusually strong or clear
Relying on Locabail International Finance Limited v Agro-Export and Shepherd Homes Ltd v Sandham, the court held that a mandatory injunction at the interlocutory stage requires a higher standard than a prohibitory injunction and is granted only in clear cases with special circumstances, because it effectively determines the case without trial. The Plaintiff's evidence fell short of this standard.
Whether causes of action were disclosed against the 2nd, 3rd and 4th Defendants
No wrongdoing was established against them; they were not parties to the agreement
It was not disputed that the 2nd to 4th Defendants were not parties to the agreement between the Plaintiff and the 1st Defendant. There was no evidence of potential purchasers paying through the 3rd Defendant or joining it, and the 4th Defendant was joined only as banker without more, which the court held was unjustified and disclosed no cause of action.
Legal principles established
#- An applicant for a temporary injunction must demonstrate a prima facie case with a probability of success, irreparable harm, and failing which the balance of convenience applies (Giella v Cassman Brown).
- A temporary mandatory injunction requires a higher threshold than a prohibitory injunction and will not be granted at the interlocutory stage in the absence of special circumstances.
- A party cannot be joined to a suit merely because it is a banker to another defendant; no cause of action arises against a bank on that basis alone.
Court orders
#- 1.The Notice of Motion dated 6th September 2016 was dismissed
- 2.Costs of the application awarded to the Defendants
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interlocutory injunctions in a suit relating to land (suit properties LR Numbers Kajiado/Kaputiei-North/15459, 15460, 15461 and 15462); no specific constitutional or statutory provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apex Advancement Limited v Simple Homes Development Consortium Limited & 3 others [2018] KEELC 3878 (KLR)", Case Analysis (2018). Interlocutory application by Notice of Motion dated 6th September 2016 in the principal suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3878/eng@2018-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.