Mungania Tea Factory Co. Ltd (In trust for Kirwiro Tea Buying Centre) v Kiriamburi Njamiu [2019] KEELC 4034 (KLR)
The bottom line
#The High Court in Embu refused a landowner's bid to take over a tea buying centre while the appeal over the land was still undecided.
What this practically means
#Executive summary
#Key legal issues
#Whether final relief could be granted at the interlocutory stage of a pending appeal
The application could not be granted because the question of ownership/occupation of the land on which the Centre stands was the very subject matter of the pending appeal
The court found that the locus of the Centre (parcel 353 or 3818) and possible eviction were matters in issue in the appeal. Granting the Respondent possession before the appeal was heard would pre-empt and determine the appeal's outcome interlocutorily, which is impermissible.
Whether the orders would render the appeal nugatory and cause greater hardship
Yes; removing the Appellant and compelling construction of an alternative facility would defeat the appeal's purpose and prejudice tea producers
The court weighed the hardship: if the Appellant were removed and the Respondent took possession, the appeal's purpose would be defeated. The court held greater hardship would befall the tea farmers forced to ferry produce 2 kilometres away than the Respondent would suffer by denial of the orders.
Whether the Respondent's conduct disqualified him from equitable relief
The Respondent's violence, malicious damage to property and prosecution disentitled him to the discretionary orders sought
Relying on Thomson Smith Aikman v Muchoki & Others, the court held that he who comes to equity must do so with clean hands. The Respondent had forcibly closed the Centre, threatened violence, and been arrested and prosecuted with his sons for malicious damage to property; the law does not assist law breakers.
Legal principles established
#- A party cannot seek final orders in its favour at the interlocutory stage where the relief sought is premised on matters in controversy in a pending appeal
- Interlocutory orders that would render a pending appeal nugatory should not be granted
- A person seeking discretionary equitable orders must conduct himself in an orderly and equitable manner
Court orders
#- 1.The Respondent's notice of motion dated 25th September 2018 is dismissed with costs to the Appellant
- 2.The Appellant is directed to file a record of appeal and set down the appeal for directions within six (6) months, in default of which the Respondent may seek its dismissal for want of prosecution
- On appeal from
- Magistrate's Court at Embu
- Embu CM's Award No. 68 of 2001
- Jurisdiction invoked
- Order 50 Rule 1 of the Civil Procedure Rules and the Court of Appeal Rules 2010 (injunction pending hearing and determination of an intended/pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungania Tea Factory Co. Ltd (In trust for Kirwiro Tea Buying Centre) v Kiriamburi Njamiu [2019] KEELC 4034 (KLR)", Case Analysis (2019). Embu CM's Award No. 68 of 2001 (appeal therein; motion dated 25th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4034/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.