Richard Muchai Kibathi v Francis Ngige Matathia & another [2019] KEELC 2258 (KLR)
The bottom line
#A Kenyan court refused to order demolition of structures because the applicant couldn't prove who actually built them, dismissing the injunction application.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st defendant/applicant established a case for a mandatory injunction
The application was not merited; the applicant failed to demonstrate that the plaintiff entered the land and put up structures, and the enforcement notice did not identify the plaintiff as owner or developer
The court examined the supporting affidavit of Elizabeth Wanjiru Ngige. The enforcement notice of 8th April 2015 annexed as EWN 5 did not state that the owner or developer was the plaintiff. Applying Locabail International Finance vs Agroexport, mandatory injunctions on interlocutory applications require special circumstances and a clear case, none of which were shown. The court also noted the application had been pending over four years and urged expedition of the main hearing.
Whether the delay in the proceedings warranted directions
The court noted the application had been pending over four years and directed that the hearing be expedited in the interest of justice
Although the interlocutory application failed, the court observed that justice delayed on interlocutory matters prejudices the suit. It therefore expressed that the main suit should be heard expeditiously so the underlying issues could be resolved conclusively, though it made no formal expedited-hearing order in the final disposition.
Legal principles established
#- A mandatory injunction should not be granted on an interlocutory application in the absence of special circumstances and only in a clear case
Court orders
#- 1.The notice of motion dated 11th April 2016 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Sections 13(7)(g), 19(1) and 2 of the Environment and Land Court Act No. 19 of 2011; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Muchai Kibathi v Francis Ngige Matathia & another [2019] KEELC 2258 (KLR)", Case Analysis (2019). Notice of motion dated 11th April 2016 (suit number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2258/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.