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ELCPartially AllowedMeru Misc. Application (Notice of Motion dated 14th March 2019)· [2019] KEELC 1265 (KLR)

Leopard Rock Mico Limited v County Government of Meru [2019] KEELC 1265 (KLR)

Environment and Land Court
9 October 2019
LMLucy N. Mbugua
1,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru refused to stop the County Government of Meru's takeover of Leopard Rock Lodge, but let the company collect its paintings and personal belongings.

What this practically means

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Executive summary

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The applicant, Leopard Rock Mico Limited, moved the court by Notice of Motion dated 14th March 2019 under section 7 of the Arbitration Act seeking a temporary injunction restraining the County Government of Meru from altering or demolishing structures at Leopard Rock Lodge in Meru National Park pending commencement and determination of arbitration under a lease agreement dated 3rd October 2008 between the applicant and the former Nyambane County Council. The applicant also sought an order allowing its directors and employees to access the lodge and remove personal property, including paintings. The application followed the respondent's termination of the lease, a notice to vacate of 5th July 2018, and eviction of the applicant's workers on 8th March 2019. The respondent opposed the application, arguing the lodge pre-existed the lease and that an injunction would render the property idle against public policy. Applying Giella v Cassman Brown as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court held that the status quo was already a takeover of the premises by the respondent, so no danger to the property was demonstrated. The dispute on compensation was already before an arbitrator appointed in Meru Misc. Application No. 24 of 2019, and a consent of 6.5.2019 provided for valuation, which the applicant did not oppose. The injunction was therefore unwarranted. On access to personal property, the court found the belongings unparticularised save for the paintings, and declined to determine entitlement absent a suit. The application was dismissed save for limited access to remove paintings and uncontested belongings, with each party bearing its own costs.

Key legal issues

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01

Whether the threshold for a temporary injunction under section 7 of the Arbitration Act was met

Holding

Not met - the status quo was that the respondent had already taken over the premises, the property was not shown to be in danger, and valuation under the consent of 6.5.2019 had been undertaken with the applicant not opposing takeover subject to compensation

Reasoning

The court applied Giella and Nguruman. The applicant was already evicted, so an injunction could not preserve a status quo of occupation. The dispute on compensation was already before an arbitrator pursuant to an order of 2.5.2019 in Meru Misc. No. 24 of 2019, and the parties had consented to valuation. Filing a separate, intertwined application only convoluted the dispute.

p. 2
02

Whether the applicant should be allowed to access the lodge and remove personal property

Holding

Allowed only as to the paintings and uncontested personal belongings; entitlement to contested items cannot be determined on an application rather than a suit

Reasoning

The applicant failed to tabulate or particularise the personal belongings beyond the paintings. Since the matter was before the court by way of application, not a suit, the court declined to determine the extent of the applicant's entitlement to property inside the lodge, granting access only for paintings and uncontested items.

p. 2

Legal principles established

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  • Interim measures of protection may be sought from the High Court before or during arbitral proceedings under section 7 of the Arbitration Act
  • The three Giella conditions for an injunction are separate, distinct and logical hurdles to be surmounted sequentially
  • Temporary injunctions preserve the status quo and are granted where there is evidence of immediate danger to property

Court orders

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  1. 1.The application dated 14.3.2019 is dismissed save for the order compelling the respondent to allow the directors of the applicant to access the lodge and take their paintings and uncontested personal belongings
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Arbitration ActSection 7
  • Land Act, No. 6 of 2012Section 65(1)

Cases cited (5)

  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Aniello Storelli v Damaris Mwongeli & another
    [2019] eKLR
  • Noormolhammed Janmohammed v Kassam Ali Virji Madhani
    (1953) 20 IRK 8
  • Safaricom Limited v Ocean View Beach Hotel Limited & 2 others
    (2010) eKLR
Jurisdiction invoked
Section 7 of the Arbitration Act, 1995 and the inherent jurisdiction of the High Court

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, "Leopard Rock Mico Limited v County Government of Meru [2019] KEELC 1265 (KLR)", Case Analysis (2019). Meru Misc. Application (Notice of Motion dated 14th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1265/eng@2019-10-09

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