Neem Properties Limited v Wells Fargo Limited [2019] KEELC 142 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Principles for interlocutory mandatory injunction
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.
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.
Whether the Applicant made out a case for relief
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 2nd September 2019 is allowed with costs to the Applicant
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.