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ELCAllowedNotice of motion dated 2nd November, 2018· [2019] KEELC 4944 (KLR)

Mvita Bottlers Ltd v Suncanvas Limited & 2 others [2019] KEELC 4944 (KLR)

Environment and Land Court
14 January 2019
CYC.K. Yano
1,619 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the plaintiff's notice of motion dated 2nd November 2018 in an interlocutory application before the Environment and Land Court at Mombasa. The plaintiff, registered proprietor of Title No. Mombasa/Block 1/270, alleged that the 3rd defendant, Mohamed Tahir Sheikh Said, who had been allowed gratuitous occupation, converted the premises to the use of the 1st defendant, Suncanvas Limited, and purported to let part of the property to the 2nd defendant, collecting rent unlawfully. The plaintiff sought a temporary injunction restraining the 1st and 3rd defendants from collecting rent, an escrow account for mesne profits, an interlocutory mandatory injunction compelling the defendants to remove their fixtures and grant vacant possession, and liberty to evict through the court bailiff with police security. The defendants, though served, neither entered appearance nor replied. Applying the Giella v Cassman Brown principles, the court found the applicant established a prima facie case with probability of success, as the certificate of lease was in the applicant's name, and that the damage would be enormous and not quantifiable in damages, with the balance of convenience favouring the registered owner. Applying Locabail and Super Power Cash and Carry, the court held a mandatory injunction could issue at the interlocutory stage because the defendants were prima facie trespassers who should not retain an advantage gained unlawfully. The motion was allowed in its entirety, with costs to the plaintiff against the defendants jointly and severally.

Key legal issues

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01

Whether a prima facie case was established

Holding

Yes - the applicant is the registered proprietor of the suit property and the defendants' occupation is unauthorised

Reasoning

The certificate of lease for Title No. Mombasa/Block 1/270 is in the applicant's name. The defendants did not enter appearance or file a reply, so their interest, if any, is unknown. The court found that the applicant, as registered proprietor, demonstrated a prima facie case with probability of success against the defendants.

p. 2
02

Whether a mandatory injunction can issue at the interlocutory stage

Holding

Yes - special circumstances exist: the defendants are trespassers who stole a match by unlawfully letting out the owner's property and threatening the director

Reasoning

Applying Locabail and Super Power Cash and Carry, the court held that in clear cases, where the act is simple and summary or the defendant has stolen a match, a mandatory injunction may issue interlocutory upon a higher sense of assurance. The 3rd defendant purported to let out the property and collected rent; the defendants threatened the plaintiff's director and remain in occupation. They are prima facie trespassers who cannot retain an advantage gained unlawfully.

p. 3

Legal principles established

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  • The principles for interlocutory injunctions are a prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt
  • A trespasser should give way pending determination of the dispute; compensability in damages is no answer

Court orders

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  1. 1.The applicant's notice of motion dated 2nd November, 2018 is allowed in its entirety
  2. 2.Temporary injunction restraining the 1st and 3rd defendants from collecting rent from the 2nd defendant
  3. 3.Mesne profits to be deposited in an escrow account in the joint names of the parties or their advocates pending hearing of the suit
  4. 4.Interlocutory mandatory injunction compelling the 1st, 2nd and 3rd defendants to remove their fixtures, fittings, trucks and other items and grant the plaintiff vacant possession of Title No. Mombasa/Block 1/270
  5. 5.In default of compliance, the plaintiff at liberty to evict the defendants through the court bailiff with the OCS Central Police Station, Mombasa providing security
  6. 6.Costs of the application to the plaintiff against the defendants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (3)

  • Giella –v– Cassman Brown & Co. Ltd.
    [1973] EA 358
  • Locabail International Finance Ltd -v- Agro Export & Another
    [1986] 1 ALL ER 901
  • Super Power Cash and Carry Ltd -vs- Nairobi City Council and 2 Others
    unreported
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory relief in a suit concerning Title No. Mombasa/Block 1/270

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, "Mvita Bottlers Ltd v Suncanvas Limited & 2 others [2019] KEELC 4944 (KLR)", Case Analysis (2019). Notice of motion dated 2nd November, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4944/eng@2019-01-14

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