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ELCPartially AllowedNot stated in judgment (transferred from the High Court; formerly ELC proceedings)· [2019] KEELC 1803 (KLR)

Davis Mwalimu Mwangeka v Kenya Ports Authority & another [2019] KEELC 1803 (KLR)

Environment and Land Court
31 July 2019
AOA. Omollo
1,292 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This matter was transferred from the High Court to the Environment and Land Court at Mombasa following the establishment of that court in October 2012. On 3rd March 2015, Kasango J had given directions on four pending applications, including an order that the Officer-in-Charge of Port Police provide information on the tenancy of Plot No. 971/972 MN Shimanzi Road, and that the defendants be granted access for repairs. On 29th April 2019, former Port Police Station Commander Samuel Cheruiyot Tuwei was cross-examined. He confirmed that the suit premises belonged to the 1st defendant, which had allocated them to the National Police Service under a memorandum of understanding, and that the plaintiff was in possession of the police canteen since 1999, paying cess to the County Commander rather than to the 1st defendant. The court ruled on the applications. The plaintiff had sought permanent and temporary injunctions restraining interference with his occupation. Applying the prima facie case, irreparable loss and balance of convenience test, the court found the plaintiff had demonstrated a prima facie case and that the balance of convenience favoured him given his possession; it confirmed the temporary injunction in terms of prayers 3 and 4 of the application dated 26th November 2012 pending determination of the suit. The applications dated 26th February 2014 and 4th December 2012 (the latter seeking contempt summons against the Managing Directors of the defendants) were held to be spent in light of Kasango J's directions, which altered the status quo. The court directed the parties to set the suit down for hearing forthwith, each party bearing their respective costs of the four applications. Judgment was delivered at Mombasa on 31st July 2019 by A. Omollo J.

Key legal issues

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01

Whether the plaintiff met the threshold for a temporary injunction

Holding

The plaintiff demonstrated a prima facie case and the balance of convenience favoured him, so the temporary injunction was confirmed

Reasoning

The former Port Police Commander confirmed the suit premises belonged to the 1st defendant, which allocated them to the National Police Service, and the plaintiff was put into possession of the canteen and was paying cess. The officer also confirmed the plaintiff had agreements with the police. This established a prima facie case; the plaintiff's continued possession tilted the balance of convenience in his favour.

p. 2
02

Whether the contempt application dated 4th December 2012 should proceed

Holding

The application was spent, as the 3rd March 2015 directions granted the defendants access to the premises for repairs and thereby altered the status quo

Reasoning

Kasango J had already directed that the 1st and 2nd defendants be granted access to the premises for repairs, with vacant possession if necessary. Those directions changed the status quo that existed when the contempt application was filed. Considering the age of the suit and article 159's demand for expeditious disposal, the court found the application overtaken by events and directed parties to set the suit down for hearing.

p. 2

Legal principles established

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  • A plaintiff seeking a temporary injunction must show a prima facie case, or irreparable loss, or that the balance of convenience tilts in his favour
  • Whether a contractual relationship exists between the parties can only be resolved at a full hearing

Court orders

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  1. 1.The temporary injunction is confirmed in terms of prayers 3 and 4 of the application dated 26th November 2012 pending determination of the suit
  2. 2.The applications dated 26th February 2014 and 4th December 2012 are spent pursuant to Kasango J's directions of 3rd March 2015
  3. 3.Parties are directed to forthwith set the suit down for hearing
  4. 4.Each party shall meet their respective costs of the four applications

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 40 rules 2 & 3
Jurisdiction invoked
Environment and Land Court established in October 2012, to which this matter was transferred from 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, "Davis Mwalimu Mwangeka v Kenya Ports Authority & another [2019] KEELC 1803 (KLR)", Case Analysis (2019). Not stated in judgment (transferred from the High Court; formerly ELC proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1803/eng@2019-07-31

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