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ELCDismissedNot stated in judgment· [2021] KEELC 795 (KLR)

Kyeleni Valley Ventures Limited v Muka Mukuu Farmers Cooperative Society Ltd [2021] KEELC 795 (KLR)

Environment and Land Court
22 November 2021
COCHRISTINE OCHIENG
1,657 words in judgment
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The bottom line

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A Kenyan court refused to stop a landowner from dealing with leased land because the mining company had breached its lease by failing to pay rent on time.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Plaintiff's Notice of Motion dated 14th December 2020 seeking a temporary injunction restraining the Defendant from interfering with eight parcels of land known as the 'suit lands' pending the hearing of the main suit. The dispute arose from a Lease Agreement of 17th July 2019 under which the Plaintiff was to lease 500 acres from the Defendant for quarrying, paying Kshs. 65,000,000 annual rent. The Plaintiff claimed it paid substantial sums, procured NEMA licensing, took possession and commenced quarrying, before the Defendant unlawfully ordered it to cease operations in January 2020 without the notice required under clause 4(a) of the Lease. The Defendant countered that the Plaintiff defaulted on rent, sublet the land to third parties, validly terminated the Lease by 30 days' notice, and had already vacated the land. The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. It found that the admitted Lease required payment of Kshs. 26,000,000 by 1st December 2019 but the Plaintiff paid only Kshs. 3,000,000, demonstrating breach; a termination notice was also issued. The court doubted the Plaintiff's candour, noting it filed suit when it was no longer on the land and sought injunctive relief too late. Following Nguruman Ltd v Jan Bonde Nielsen, the court declined to consider the remaining limbs. The application was dismissed, with costs in the cause.

Key legal issues

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01

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

Holding

No prima facie case established; the admitted Lease showed the Plaintiff breached its payment obligations and a termination notice was issued

Reasoning

The court relied on Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank. The Lease Agreement, whose existence both parties admitted, required the Plaintiff to pay Kshs. 26,000,000 by 1st December 2019 but it paid only Kshs. 3,000,000, demonstrating breach. A notice of termination was also issued, evidenced by annexed WhatsApp messages. The Plaintiff's candidacy was doubtful as it filed suit when no longer in occupation. Consequently, the prima facie case threshold was not met and the application was disallowed.

p. 3

Legal principles established

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  • A party seeking an interlocutory injunction must establish a prima facie case with a probability of success; where no prima facie case is shown, the court need not consider the other Giella limbs

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 14th December, 2020 is unmerited and is disallowed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Civil Procedure ActSection 3A

Cases cited (8)

  • Giella V Cassman Brown & Co. Ltd
    (1973) EA 358
  • Ace Engineering & Building Contractors Ltd V National Bank of Kenya Limited
    (2019) eKLR
  • Mrao Ltd V First American Bank of Kenya Ltd & 2 others
    Civil Appeal No. 39 of 2002; (2003) KLR 125
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Pius Kimaiyo Langat V Cooperative Bank of Kenya Ltd
    (2017) eKLR
  • Tusker Mattress Ltd V Bank of Baroda (Kenya) Ltd & Another
    (2017) eKLR
  • Nguruman Limited V Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Samuel Mwanzia Kithuka & Others vs. Muka Mukuu FCS & Others
    Nairobi CTC No. 150 of 2020
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and interlocutory jurisdiction under Order 40 Rules 1 & 2 of the Civil Procedure Rules

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, "Kyeleni Valley Ventures Limited v Muka Mukuu Farmers Cooperative Society Ltd [2021] KEELC 795 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/795/eng@2021-11-22

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