Kilifi Boatyard Limited v Kilifi Plantation Limited & 4 others [2021] KEELC 349 (KLR)
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
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
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.
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.
Whether the suit is res judicata the arbitral award of 2nd March, 2021
No - the arbitrator could not have granted the injunctive relief sought, so this court retains jurisdiction to hear and determine the issues raised.
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.
Whether the injunction would impermissibly create a 10-year lease extension
No - the orders merely preserve the property pending determination of whether the lease should be automatically extended under Clause 4.
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.
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.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.Costs of the application to the Plaintiff
- 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.