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ELCDismissed· [2019] KEELC 3659 (KLR)

Total Kenya Limited v Kerugoya Service Station Ltd & another [2019] KEELC 3659 (KLR)

Environment and Land Court
22 March 2019
ECE.C. Cherono
2,282 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a landlord's demand for Ksh. 28 million in rent because its court application did not match what it had actually pleaded.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 12th October 2018 by the 1st defendant in a landlord-tenant dispute before the Environment and Land Court at Kerugoya. The 1st defendant, through the affidavit of its director Emmanuel Gichira Njamumo, sought orders compelling the plaintiff to deposit Ksh. 28,462,572.65 and all outstanding rent arrears into its KCB account within fourteen days, and further orders compelling the plaintiff to disclose its sales records, delivery notes and sales entries from July 2005 and to share monthly sales entries, so that rent pegged on fuel volumes could be calculated under the lease and its variations. The 1st defendant asserted that rent had not been paid since July 2014 and that the plaintiff withheld the records needed to compute it. The plaintiff, through its legal manager Boniface Abala, countered that it had faithfully paid rent until an internal ownership dispute within the 1st defendant company (litigated in H.C.C.C No. 13 of 2014, Kerugoya) led the 1st defendant to instruct it to withhold rent, that sums of Ksh. 5,563,373.35 and Ksh. 1,974,114 were later released by consent, that it had served a rent computation up to September 2016 and paid a further Ksh. 7,537,487, and that the claimed figure was fictitious. The plaintiff also argued that a mandatory injunction is granted only in the clearest of cases. The court dismissed the application, holding that parties are bound by their pleadings and the orders sought were unsupported by the pleadings and amounted to a fishing expedition. Costs were to abide the event.

Key legal issues

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01

Whether interlocutory orders can be granted on claims not anchored in the pleadings

Holding

The application was dismissed because the orders sought did not evolve from the pleadings; the defendant had not stated with certainty how the agreed monthly rent was to be computed or how the demanded figure of Ksh. 28,462,512.65 was arrived at.

Reasoning

The court applied the principle that pleadings define and delimit the matters in controversy and that any relief must flow from them. Relying on Bullen and Leake & Jacob's Precedents of Pleadings and the Nigerian Supreme Court decision in Adetoun Oladefi (NIG) Limited v Nigeria Breweries PLC (as cited in IEBC v Stephen Mutinda), it held that orders unsupported by pleadings are a fishing expedition which a court cannot countenance.

p. 3
02

Mandatory injunction test at interlocutory stage

Holding

The plaintiff argued, and the dismissal is consistent with, the settled position that a mandatory injunction is granted only in the clearest of cases; the blurred claim for Ksh. 28,462,512.65 could not meet that standard.

Reasoning

The respondent submitted, citing Vol. 24 Halsbury's Laws of England 4th Edition Paragraph 948 and the authorities Lucy Wangui Gadeva v Minudi Okemwa Lore and Shepherd Homes Ltd v Sandalim, that a mandatory injunction is granted only in the clearest of cases. The court did not expressly adopt this test, resting dismissal instead on the pleadings principle, so this reasoning is not the ratio.

p. 2

Legal principles established

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  • Parties are bound by their pleadings; any order sought must evolve from the pleadings
  • Evidence at variance with the pleadings goes to no issue and must be disregarded

Court orders

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  1. 1.The application dated 12th October 2018 is dismissed
  2. 2.Costs shall abide the event

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (4)

  • Lucy Wangui Gadeva Vs Minudi Okemwa Lore
    Civil Appeal No. 4 of 105
  • Shepherd Homes Ltd Vs Sandalim
    (1971) 1 CH 34
  • Independent Electoral and Boundaries Commission & Another Vs Stephen Mutinda & 3 others
    C.A No. 219 of 2013
  • Adetoun Oladefi (NIG) Limited Vs Nigeria Breweries PLC
    SC 91 (2002)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Total Kenya Limited v Kerugoya Service Station Ltd & another [2019] KEELC 3659 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3659/eng@2019-03-22

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