Bamburi Supermarket Limited v Rupa Gupta & 3 others [2021] KEELC 446 (KLR)
The bottom line
#Kenya's Land Court confirmed that registered landowners can win injunctions even when shareholding disputes run parallel in other courts.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction
The Plaintiff, holding a Certificate of Title to the suit property, established a prima facie case with a high chance of success
The Plaintiff produced a Certificate of Title indicating the land is legally and absolutely registered in its names. While contested issues remain for full trial, the Plaintiff satisfied the Giella v Cassman Brown test of a prima facie case with probability of success. The court held the ownership dispute in the ELC was distinct from the shareholding dispute in the High Court commercial suit, and the Defendants' claims related to company shares, not title to the registered land.
Whether the Plaintiff would suffer irreparable injury not compensable by damages
Yes - the Plaintiff stood to lose rental income and faced exposure to tax-evasion liability, harm not quantifiable in damages
The Defendants had allegedly leased out the suit property, collected rents and barred the Plaintiff and its directors from access, causing loss of rental income and exposure to KRA tax-evasion charges. The court associated itself with Nguruman Limited v Jan Bonde Nielsen, holding that the foundation of injunctive jurisdiction is the probability of irreparable injury and inadequacy of pecuniary compensation, and found the balance of convenience favoured preserving the suit property.
Whether the suit was barred by sub judice (Section 6) or res judicata (Section 7) of the Civil Procedure Act
No - the ELC suit on land ownership and the High Court commercial suit on shareholding were distinct in subject matter and relief, so neither doctrine applied
The court set out the ingredients of both doctrines and held that although the parties overlapped (family members), the matters were pending rather than finally determined (defeating res judicata) and the subject matters were substantially distinct (defeating sub judice). The ELC had original and unlimited jurisdiction over land use, title and occupation under Article 162(2)(b) and Section 3 of the ELC Act, while the High Court commercial suit concerned shares of the company.
Which court has jurisdiction over the directorship/shareholding and succession issues
The shareholding/commercial issues belong to the High Court commercial division and the succession issues to the family/succession court; the ELC is confined to the land ownership and interference questions
The court held that the High Court (Commercial Division) in HCCC No. 070/2021 is competent to determine the shareholding and commercial disputes concerning Bamburi Supermarket Limited, while the succession cause in the family court deals with the estate of the deceased. The ELC retains jurisdiction solely over ownership, title, occupation and interference with the suit land. The court advised the parties to consolidate or withdraw the multiplicity of suits.
Legal principles established
#- The principles for granting a temporary injunction are a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
- At an interlocutory stage the court is forbidden to decide with finality the facts urged by the parties
- Section 6 of the Civil Procedure Act bars parallel prosecution of cases in two forums of equal jurisdiction only where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title
- Where commercial and land issues are distinct and severable, each suit properly before the competent court should proceed (mixed grill cases)
- Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court retains discretion on principles of natural justice, equity and conscience
Court orders
#- 1.The Notice of Motion dated 19th August 2021 by the Plaintiff/Applicant is allowed
- 2.The Notice of Motion application dated 23rd August 2021 by the Defendant/Applicants is found unmeritorious and dismissed
- 3.The grounds of opposition dated 27th September 2021 by the 4th Defendant are found unmeritorious and dismissed
- 4.The Notice of Motion application dated 7th September 2021 by the Plaintiff/Applicant (contempt proceedings) is stayed awaiting the outcome of the orders made on 7th December 2021, on conditions that all rental income collected from the suit land from 31st July onwards be deposited into a joint escrow account of the four law firms within 14 days; the account holders/signatories to run, manage and operate the accounts pending determination; and the 1st Defendant to provide detailed accounts and financial statements of all rental income collected from 31st July to date within 30 days
- 5.The parties are advised to withdraw all pending court cases over the same subject matter in other courts or to consolidate them
- 6.HCCC (Mombasa) No. 070/2021 on the fraudulent and irregular matters of shares in the plaintiff's property to continue to its logical conclusion
- 7.ELC No. 165/2021 on ownership and title of the suit land to be fixed for hearing within 90 days on priority basis
- 8.Mention of ELC 165/2021 on 1st February 2022 for pre-trial conference under Order 11 of the Civil Procedure Rules, case management and taking of a hearing date
- 9.Each party to bear their own costs of the applications
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 3 of the Environment and Land Court Act, No. 19 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Said v Issack & 3 others[2023] KEELC 19217 (KLR)27 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Bamburi Supermarket Limited v Rupa Gupta & 3 others [2021] KEELC 446 (KLR)", Case Analysis (2021). ELC No. 165 of 2021 (Formerly Malindi ELC 3 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/446/eng@2021-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.