Rose Wangari Ndungu & another (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndungu Njoroge) v Catherine Njeri & another [2020] KEELC 1697 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant established a prima facie case and irreparable harm warranting a temporary mandatory injunction
Yes. As registered owner of the suit property, the Applicant established a prima facie case with probability of success; continued construction by the 1st Defendant in violation of court orders put the Applicant at risk of irreparable harm not compensable in damages.
The court applied the Giella v Cassman Brown principles. The Applicant's registration as proprietor gave it apparent rights that the 1st Defendant's continued occupation and development infringed. The court found the Applicant at risk of losing the substratum of its case if developments continued contrary to the existing orders, satisfying the irreparable harm limb. The balance of convenience limb was unnecessary since the court was not in doubt.
Whether special circumstances existed to justify a mandatory (as opposed to prohibitory) injunction at the interlocutory stage
Yes. The 1st Defendant's continued construction on the suit property contrary to the existing court orders amounted to stealing a march on the Applicant, and her actions were not trivial, constituting special circumstances.
Guided by Locabail and Kenya Breweries v Okeyo, the court held that a mandatory injunction at the interlocutory stage requires special circumstances or a clear case. Here there was a subsisting order allowing the Applicant to use and utilize the suit property; by constructing thereon the 1st Defendant sought to change the substratum of the property and gain an advantage, so the circumstances were special and the acts not trivial.
Legal principles established
#- A mandatory injunction may be granted at the interlocutory stage in the absence of special circumstances only in clear cases, or where the act is simple and summary, easily remedied, or where the defendant attempted to steal a march on the plaintiff.
- Before granting a mandatory interlocutory injunction the court must feel a high degree of assurance that at trial it would appear the injunction had rightly been granted - a higher standard than for a prohibitory injunction.
- A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal.
Court orders
#- 1.Application dated 21st March 2019 allowed entirely in terms of Prayers 3, 5, 6 and 7
- 2.Temporary mandatory injunction compelling the 1st Defendant, her agents, servants, employees or anyone claiming under her from encroaching, trespassing, building, wasting, damaging, alienating, disposing, selling and/or interfering with land parcel no. DAGORETI/RIRUTA/6213 pending hearing and determination of the suit (Prayer 3)
- 3.Temporary mandatory injunction compelling the 1st Defendant and those claiming under her to forthwith vacate the suit property pending hearing and determination of the suit (Prayer 5)
- 4.Time frame of 45 days from the date of the judgment fixed for the 1st Defendant to comply with Prayer 5; in default, the 2nd Defendant to enforce Prayer 6 (eviction and attendant costs)
- 5.Officer Commanding Station (OCS), Muthangari Police Station to supervise implementation and enforcement of the court order (Prayer 7)
- 6.1st Defendant to pay the costs of the application
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interlocutory injunctions pending hearing of the suit (no specific constitutional/statutory provision invoked); Civil Procedure Rules Order 21 rule 1 waived for virtual delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Wangari Ndungu & another (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndungu Njoroge) v Catherine Njeri & another [2020] KEELC 1697 (KLR)", Case Analysis (2020). Not stated in the judgment (suit number not reproduced in the text provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1697/eng@2020-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.