Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 29th March, 2021 (suit number not stated in judgment)· [2021] KEELC 349 (KLR)

Kilifi Boatyard Limited v Kilifi Plantation Limited & 4 others [2021] KEELC 349 (KLR)

Environment and Land Court
16 December 2021
2,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court stopped Kilifi Plantation from evicting Kilifi Boatyard, ruling the company had a genuine arguable claim to stay on the land.

What this practically means

#

Executive summary

#
Kilifi Boatyard Limited moved the Environment and Land Court by Notice of Motion dated 29th March 2021 seeking an injunction restraining the Defendants from entering upon, evicting it from, demolishing, erecting upon or dealing in any way with parcel number Group V 429 situate in Kilifi, pending the hearing and determination of a suit filed contemporaneously. The Plaintiff claimed it had entered a 20-year lease in 2001, negotiated through the 3rd Defendant as director of the 1st Defendant but executed in favour of the 2nd Defendant, and that on its expiration on 1st April 2021 the Defendants refused extension in bad faith, threatening eviction and irreparable harm to its substantial investments. The 1st Defendant (Kilifi Plantation Limited) denied ownership of the property and any party to the lease, asserting separate legal personality and that the Plaintiff occupied without consent or rent, and pleaded res judicata of an arbitral award of 2nd March 2021. The 2nd and 3rd Defendants (Dartstar Limited and Christopher Dennis Wilson) claimed ownership as lessors and likewise pleaded res judicata. Applying the Giella v Casman Brown conditions and the Mrao definition of a prima facie case, Olola J found from the 2001 correspondence and subsequent conduct - including rent invoices sent on behalf of the 1st Defendant - that the Plaintiff had made out a prima facie case, the blurred distinction between the 1st and 2nd Defendants being central. The res judicata objection failed because the arbitrator could not have granted the injunctive relief sought, and the orders were held merely preservative, not creating a lease extension. The application was allowed in terms of prayer No. 3, with costs to the Plaintiff. Ruling delivered virtually at Nyeri on 16th December 2021.

Key legal issues

#
01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff executed the 2001 lease on the assurance the 2nd Defendant would regularize matters with the 1st Defendant, and the 1st Defendant never protested the Plaintiff's presence for 20 years; the distinction between the two Defendants remains blurred.

Reasoning

The court examined the 2001 correspondence showing negotiations were conducted exclusively through the 3rd Defendant as director of the 1st Defendant, with the lease ending up in the name of the 2nd Defendant (Dartstar). The 2nd Defendant had indicated in the lease that it had applied for a Temporary Occupation License, and rent invoices were sent under email signed on behalf of the 1st Defendant. This suggested an arguable claim connecting the Defendants to the lease and the Plaintiff's occupation, justifying an interlocutory injunction.

p. 4
02

Whether the suit is res judicata the arbitral award of 2nd March, 2021

Holding

No - the arbitrator could not have granted the injunctive relief sought, so this court retains jurisdiction to hear and determine the issues raised.

Reasoning

The Defendants argued the suit was res judicata the arbitration award delivered on 2nd March, 2021 between the same parties. The court held that the arbitrator lacked power to grant the injunction orders now sought, and therefore the arbitration did not bar the court from hearing and determining all the issues raised, including the question of whether the lease should be automatically extended under Clause 4.

p. 4
03

Whether the injunction would impermissibly create a 10-year lease extension

Holding

No - the orders merely preserve the property pending determination of whether the lease should be automatically extended under Clause 4.

Reasoning

The 1st Defendant contended the orders would create a 10-year lease without a valid instrument or compensation. The court disagreed, finding the injunction's effect was preservative only, maintaining the status quo while the court considers evidence and determines whether the lease agreement between the Plaintiff and the 2nd Defendant should be compulsorily extended as provided under Clause 4.

p. 4

Legal principles established

#
  • The conditions for an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, a decision on the balance of convenience.
  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.
  • At the interlocutory stage the court looks at the whole case, the strength of both claim and defence, and does not resolve conflicts of affidavit evidence or decide difficult questions of law.

Court orders

#
  1. 1.Injunction granted in terms of prayer No. 3 of the Notice of Motion dated 29th March, 2021 restraining the Defendants from entering upon, evicting the Plaintiff, occupying, demolishing any portion, erecting upon or transferring, charging, leasing, alienating or otherwise dealing with parcel number Group V 429 situate in Kilifi, pending the hearing and determination of the suit
  2. 2.Costs of the application to the Plaintiff

Authorities

#

Cases cited (3)

  • Giella -vs- Casman Brown & Company Limited
    (1973) EA 358
  • Mrao Limited –vs- First American Bank of Kenya Limited and 2 Others
    (2003) eKLR
  • Central Bank of Kenya and Another –vs- Uhuru Highway Development Limited and 4 Others
    (1998) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (arbitration objection rejected: 'the arbitrator could not have granted the orders of injunctions sought herein and I am accordingly of the view that this court is seized of the necessary jurisdiction')

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kilifi Boatyard Limited v Kilifi Plantation Limited & 4 others [2021] KEELC 349 (KLR)", Case Analysis (2021). Notice of Motion dated 29th March, 2021 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/349/eng@2021-12-16

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