Hadiya Construction & Mineral Ltd v Ajabu East Africa Ltd [2018] KEELC 4169 (KLR)
The bottom line
#A Kenyan court refused a company's bid to block a rival from land it leased, because the lease was unregistered, unstamped, and signed with an entity whose legal existence was never proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case
No prima facie case was established because the purported lessor's title, legal status and authority over most of the suit parcels were not proved and the lease agreement was unregistered and unstamped
The court found no evidence that the Kakamega Housing Co-operative Society, the purported lessor, held title to the properties or was a legal entity, save for a few parcels. The applicant did not prove the society was registered, produced no authority from members, and the agreement was unregistered with no stamp duty paid, rendering the transaction unenforceable.
Irreparable injury and adequacy of damages
No irreparable loss was shown since the plaintiff had not taken possession or commenced work since the 2015 agreement
The court noted that since entering the agreement on 27th July 2015, the plaintiff had neither taken possession nor commenced work on the parcels, indicating no irreparable injury that damages could not compensate. The court also held the orders sought were effectively final and could not issue at the interlocutory stage.
Nature of the orders sought
The orders sought were final orders and could not be granted at the interlocutory stage
The court found the restraining orders sought would effectively give the applicant final possession and access to the parcels, and that the applicant had failed on the second Giella limb as well, making the application incurably defective at the interlocutory stage.
Legal principles established
#- The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
- A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success upon trial (Mrao Ltd v First American Bank of Kenya Ltd)
Court orders
#- 1.Dismissal of the plaintiff's/applicant's Notice of Motion dated 7th October 2016 with costs
- 2.Advice to the parties to take a hearing date of the main suit
- Jurisdiction invoked
- Section 21 of the Practice Directions and Proceedings before the Environment and Land Court pursuant to Kenya Gazette Notice No. 5176 of the 28th day of July, 2014 (jurisdiction of the Deputy Registrar to consider the application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hadiya Construction & Mineral Ltd v Ajabu East Africa Ltd [2018] KEELC 4169 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4169/eng@2018-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.