Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2018] KEELC 4169 (KLR)

Hadiya Construction & Mineral Ltd v Ajabu East Africa Ltd [2018] KEELC 4169 (KLR)

Environment and Land Court
7 March 2018
2,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This was a Notice of Motion dated 7th October 2016 in which the plaintiff company sought interlocutory injunctions restraining the defendant company from accessing or interfering with 27 parcels of land in Isukha/Shirere, said to belong to members of the Municipal Housing Co-operative Society Limited. The plaintiff relied on a lease agreement dated 27th July 2015 under which it claimed rights to remove heaps of soil for a consideration of Ksh. 1,500,000 over three years, and alleged the defendant was mobilising equipment to enter the parcels on the strength of an unnamed third party. The defendant opposed, arguing that prayer 3 duplicated interim orders already granted and lapsed, that the purported lessor had no title or legal existence over most of the parcels, that the agreement was unregistered and unstamped, and that some parcels were reserved for public utility. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank of Kenya Ltd, the court found the applicant had not established a prima facie case with a probability of success, since the lessor's title and legal status were unproved and the agreement unenforceable. The court further held the applicant had taken no possession nor commenced work, hence no irreparable loss, and that the orders sought were final in nature and ungrantable at the interlocutory stage. The application was dismissed with costs and parties advised to take a hearing date of the main suit.

Key legal issues

#
01

Whether the applicant established a prima facie case

Holding

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

Reasoning

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.

p. 3
02

Irreparable injury and adequacy of damages

Holding

No irreparable loss was shown since the plaintiff had not taken possession or commenced work since the 2015 agreement

Reasoning

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.

p. 2
03

Nature of the orders sought

Holding

The orders sought were final orders and could not be granted at the interlocutory stage

Reasoning

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.

p. 3

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. 1.Dismissal of the plaintiff's/applicant's Notice of Motion dated 7th October 2016 with costs
  2. 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.