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ELCAllowedNotice of Motion dated 2nd September 2019 (suit not otherwise numbered in judgment)· [2019] KEELC 142 (KLR)

Neem Properties Limited v Wells Fargo Limited [2019] KEELC 142 (KLR)

High Court of Kenya
11 December 2019
2,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ordered a security firm to vacate two land parcels it occupied without authority, while letting it keep guarding the one property it was actually hired to protect.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 2nd September 2019 brought by the Plaintiff/Applicant, the registered proprietor of Subdivisions 3362 and 3363 (Original Numbers 957/1 and 957/2) Section 1 Mainland North, seeking eviction of the Defendant/Respondent, temporary and permanent injunctions, vacant possession, and enforcement by the OCS Nyali Police Station. The Applicant contended that on 12th June 2019 the Respondent's security guards forcibly entered the suit properties, evicted its agents, and took possession, amounting to trespass. The Respondent, a private security firm, denied entering the suit properties, asserting that on instructions from Middle East Bank Limited, exercising its rights as chargee, it took possession of and guarded adjoining Subdivision No. 903, which it claimed the Applicant had failed to disclose and which was charged to the bank. Applying the Giella principles and the stricter Locabail standard for interlocutory mandatory injunctions, the court held that it was not disputed the Applicant was the registered owner of the suit properties, and that the Respondent's instructions were limited to Subdivision No. 903. The Respondent therefore had no justification for occupying Subdivisions 3362 and 3363. A prima facie case, irreparable loss not compensable in damages, and the balance of convenience all favoured the Applicant. The motion was allowed with costs to the Applicant, while the Respondent was expressly permitted to continue occupying Subdivision No. 903, which was not subject of the case.

Key legal issues

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01

Principles for interlocutory mandatory injunction

Holding

The standard is higher than for a prohibitory injunction; special circumstances and a high sense of assurance are required, as set out in Locabail International Finance Ltd v Agro Export.

Reasoning

The court distinguished the Giella test applicable to prohibitory injunctions from the stricter Locabail standard for mandatory injunctions at the interlocutory stage. It noted judicial reluctance to grant mandatory injunctions interlocutorily, but held that where the party against whom the order is sought is prima facie on the wrong, the court may act without awaiting full trial.

p. 2
02

Whether the Applicant made out a case for relief

Holding

Yes. The Applicant is the undisputed registered owner of the suit properties; the Respondent's instructions from Middle East Bank Limited related only to Subdivision No. 903, so its occupation of 3362 and 3363 lacked justification.

Reasoning

The Respondent admitted entering upon and taking possession of Subdivision No. 903 under instructions from the chargee bank. Since the charge did not encumber Subdivisions 3362 and 3363, the Respondent had no lawful basis for occupying them. A prima facie case, irreparable loss not compensable in damages, and the balance of convenience all favoured the Applicant.

p. 3

Legal principles established

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  • The standard for an interlocutory mandatory injunction is higher than that for a prohibitory injunction, requiring special circumstances and a high sense of assurance.
  • A party instructed to take possession of one property has no justification to occupy or remain in possession of adjoining properties not covered by the instructions.

Court orders

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  1. 1.The Notice of Motion dated 2nd September 2019 is allowed with costs to the Applicant
  2. 2.The Respondent is at liberty to continue its occupation and possession of SUBDIVISION NUMBER 903 SECTION 1 MAINLAND NORTH which is not subject of this case

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 3 and 4; Order 51 Rules 1 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159(2); Article 40
  • Land Registration ActSections 24 and 25

Cases cited (8)

  • Maher Unissa Karim v Edward Oluoch Odumbe (2015) eKLR
    (2015) eKLR
  • Tom Onyango v Mimosa Investments Limited (2017) eKLR
    (2017) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR
    (2003) eKLR
  • Kiplangat Chesenge v Joseph Rotich & David Rotich (2018) eKLR
    (2018) eKLR
  • Elizabeth Chemutai & Another v Janeth Chepkoech & Another (2019) eKLR
    (2019) eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others (2016) eKLR
    (2016) eKLR
  • Zephania Khisa Saul v School Committee St. Anne's Secondary School (2019) eKLR
    (2019) eKLR
  • Locabail International Finance Ltd v Agro Export & Another
    (1986) 1 ALL ER 901
Jurisdiction invoked
Article 159(2) of the Constitution; Order 40 Rules 1, 3 and 4, Order 51 Rules 1 and 3 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, "Neem Properties Limited v Wells Fargo Limited [2019] KEELC 142 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd September 2019 (suit not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/142/eng@2019-12-11

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