Agnes Wangui Munyi v Stanley Shiundu Amukaya & another [2019] KEELC 3661 (KLR)

The 1st Defendant sought mandatory interlocutory relief including vacant possession but had filed no Defence or Counter-claim. A court cannot assess whether the applicant's case is plain and clear without pleadings setting out that case. Further, the defendant's own account of who negotiated the tenancy was inconsistent (Peter Kimani versus his son Erastus), and neither is a party, so the case could not be described as clear. Without a pleading containing the claim to the injunction, the application is incompetent and fails.

The Plaintiff produced a title deed for LR No. Ruiru/Ruiru East Block 2/7210 and documentation for the purchase of Plot A out of Block 2/7211, which the Defendants did not refute. The validity of the documents is a matter for trial. Distress had already been levied against the property, so her right to quiet possession was under real threat. On the Nguruman standard, the court does not hold a mini-trial at this stage.

The Plaintiff has built hostels on the suit properties and is in occupation; the 1st Defendant has already levied distress and there is a real likelihood of eviction and loss of rental income if injunctive relief is withheld. Damages would be an adequate remedy for the 1st Defendant, who is not in occupation and claims only rent arrears, but not for the Plaintiff whose crystallised rights over the properties can be protected by injunction.

The Plaintiff is the party currently in occupation of the suit properties and is the one likely to suffer the greater harm if the status quo is disturbed. Maintaining the status quo preserves the position of both parties pending trial.