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ELCAllowedNotice of motion dated 19th November 2015 (suit number not stated in judgment)· [2019] KEELC 2257 (KLR)

Manil Limited v Friends that Care Holding Company [2019] KEELC 2257 (KLR)

Environment and Land Court
18 July 2019
LKL. KOMINGOI
1,059 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 stopped a Ruaraka property seller from evicting a buyer who had paid Kshs.28 million, protecting the land until trial.

What this practically means

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Executive summary

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This was a notice of motion dated 19th November 2015 by the plaintiff under Order 40 rules 1, 2, 3 and 4(1) and 2 and Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 13(7) of the Environment and Land Act, seeking a temporary injunction pending the hearing of the suit restraining the defendant from evicting the plaintiff or dealing with Land Reference Number 366/10, Ruaraka, Nairobi, plus costs. The application was supported by the affidavit of Bharat Kumar Velji Shah, a director of the plaintiff, and opposed by a preliminary objection dated 15th December 2015 and a replying affidavit of Seintje Veldhuis, a director of the defendant. The court directed disposal by written submissions. The plaintiff submitted it had procured the provisional title in the defendant's favour, paid a deposit of Kshs.28 million, was ready, able and willing to complete the sale, and that the defendant was in breach. The defendant contended that following rescission of the sale agreement the plaintiff had no right over the suit property, that it held the provisional title as absolute proprietor, and that damages would suffice. Framing two issues - the injunction threshold and costs - the court applied Giella v Cassman Brown, Mrao Ltd and Kenleb Cons Ltd, found a prima facie case with probability of success and that the balance of convenience favoured the injunction. It allowed the application, issuing an injunction restraining the defendant from evicting the plaintiff or dealing with the suit property, with the costs of the application to abide the outcome of the main suit.

Key legal issues

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01

Whether the plaintiff met the Giella v Cassman Brown threshold for a temporary injunction

Holding

Yes - a prima facie case with probability of success was established, the balance of convenience favours the injunction, and preservation of the suit property is necessary.

Reasoning

The court found, on the unchallenged evidence, that the plaintiff procured the issuance of the provisional title in favour of the defendant and paid a deposit of Kshs.28 million. The plaintiff was ready, able and willing to complete the sale transaction while the defendant was in breach. Preservation of the suit property pending trial was therefore necessary, and damages were not an adequate alternative at the interlocutory stage.

p. 2

Legal principles established

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  • In an application for an injunction the onus is on the applicant to satisfy the court that it should grant an injunction, per the Giella v Cassman Brown principles
  • An applicant for injunction must make full disclosure of relevant facts and show a legal or equitable right requiring protection

Court orders

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  1. 1.An order of injunction restraining the defendant, whether acting by itself or through its agents, servants and/or employees, from evicting the plaintiff or in any manner whatsoever dealing with the suit property pending the hearing and determination of the suit
  2. 2.The costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3, 4(1) and 2; Order 51 rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land ActSection 13(7)

Cases cited (9)

  • Lucy Njeri Njoroge vs Kaiyahe Njoroge
    [2015] eKLR
  • Mildred Machanja t/a Learn IT vs Kilimani Junior Academy
    [2005]
  • Nabro Properties Limited vs Sky Structures Ltd & 2 Others
    [2002] eKLR
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 others
    Civil Appeal No. 77 of 2012
  • Wycliffe Mutali Okwaro vs Kenya Women Micro Finance Bank Ltd & Another
    [2017] eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    [2018] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Order 40 rules 1, 2, 3 and 4(1) and 2, Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 13(7) of the Environment and Land 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, "Manil Limited v Friends that Care Holding Company [2019] KEELC 2257 (KLR)", Case Analysis (2019). Notice of motion dated 19th November 2015 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2257/eng@2019-07-18

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