Edwin Kipkurgat Kenduiywo v Mark Kipchumba Maritim & another [2019] KEELC 3947 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The plaintiff failed to establish a prima facie case because the 1st defendant offered a plausible explanation for his occupation, supported by sale agreements executed with the plaintiff's knowledge, and no fraud was pleaded against the 1st defendant in the amended plaint.
The court noted the suit land is registered in the plaintiff's name, but copies of agreements between the 1st and 2nd defendants suggested a sale of portions with the plaintiff as witness. The plaintiff pleaded fraud only against the 2nd defendant (his son), not the 1st. The court therefore found the plaintiff had not met the Giella conditions, nor shown loss incapable of compensation by damages, making assessment of balance of convenience unnecessary.
Mandatory effect of interlocutory injunction against a party in occupation
Because the 1st defendant was already in occupation, the injunction sought would in effect be mandatory (amounting to eviction before trial) and could only issue in exceptional circumstances, which the plaintiff had not demonstrated.
Relying on Locabail International Finance Ltd v Agro-Export and the principles restated in Shariff Abdi Hassan v Nadhif Jama Adan as cited in Beatrice Ngina Mwai v Gichine Mwai, the court held that the standard for mandatory injunctions is higher than for prohibitory ones. The court found the applicant had not gone the extra mile to justify removing the defendant from the premises before the suit was concluded.
Legal principles established
#- A mandatory interlocutory injunction cannot issue against a defendant already in occupation of land save in very exceptional circumstances, especially where the respondent has stolen a march on the applicant
- The standard for granting a mandatory injunction is higher than that for a prohibitory injunction under Giella v Cassman Brown
Court orders
#- 1.The application dated 4/2/2019 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edwin Kipkurgat Kenduiywo v Mark Kipchumba Maritim & another [2019] KEELC 3947 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 4th February, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3947/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.