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ELCDismissedNot stated in the excerpt (the ruling concerns the 2nd and 3rd defendants' Notice of Motion dated 7th June 2019)· [2020] KEELC 3402 (KLR)

Linnet Wairimu Mukuha & 2 others v County Government of Nakuru & 4 others [2020] KEELC 3402 (KLR)

Environment and Land Court (Kenya)
5 March 2020
DOD. O. Ohungo
991 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed tenants' bid to stop rent recovery because they showed no concrete threat and had repeatedly refiled the same failed applications.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, Judge of the Environment and Land Court at Nakuru, determined a Notice of Motion dated 7th June 2019 in which the 2nd and 3rd defendants sought a temporary injunction restraining the 1st and 2nd plaintiffs from levying distress for rent or interfering with their occupation of premises on land parcel Naivasha Municipality Block 6/117 pending determination of ownership of the parcel in the main suit. The application was supported by an affidavit of the 2nd defendant, who deposed that the plaintiffs had attempted to levy distress against him although he was not their tenant and was the registered proprietor of the suit property. The plaintiffs opposed, deposing through the 1st plaintiff that a Rent Restriction Tribunal had ordered rent to be paid in 2017, that a stay application in a High Court appeal was dismissed in December 2018, and that a similar application had been dismissed by the Chief Magistrate's Court on 31st May 2019, rendering the present application an abuse of process. Applying the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court found no specific threat or date of proclamation of distress in the supporting affidavit and held that no prima facie case had been established. It further agreed that the application was an abuse of process and that the applicants came with unclean hands, disentitling them to equitable relief. The Notice of Motion was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether a prima facie case was established for an interlocutory injunction

Holding

No prima facie case was established; the supporting affidavit disclosed no specific threat, date of proclamation of distress, or urgent necessity

Reasoning

Applying Nguruman Limited v Jan Bonde Nielsen, an applicant must show a clear and unmistakable right directly threatened by the act to be restrained. The court found the supporting affidavit contained no specific threat and no date of a proclamation of distress. Having failed on the first Giella limb, the application could not succeed and the remaining limbs fell away.

p. 2
02

Whether the application was an abuse of court process

Holding

Yes; the same relief had been sought and dismissed in prior proceedings, and the applicants' unclean hands disentitled them to equitable relief

Reasoning

The court traced the litigation history: a Rent Restriction Tribunal order of 25 September 2017 directing payment of rent, a dismissed stay application in High Court Civil Appeal No. 137 of 2017 on 18 December 2018, and a dismissed application for similar orders in Chief Magistrate's Court Misc. Civil Application No. 2 of 2019 on 31 May 2019. Filing a fresh application for the same relief was an abuse of process and demonstrated unclean hands.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must show a clear and unmistakable right directly threatened by the act sought to be restrained, and failure to establish a prima facie case is fatal regardless of the other Giella limbs
  • Injunctive relief is equitable and a party must come to court with clean hands

Court orders

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  1. 1.The 2nd and 3rd defendants' Notice of Motion dated 7th June 2019 is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over the suit concerning land parcel Naivasha Municipality Block 6/117 (interlocutory application in a pending suit)

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, "Linnet Wairimu Mukuha & 2 others v County Government of Nakuru & 4 others [2020] KEELC 3402 (KLR)", Case Analysis (2020). Not stated in the excerpt (the ruling concerns the 2nd and 3rd defendants' Notice of Motion dated 7th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3402/eng@2020-03-05

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