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ELCPartially AllowedChamber Summons dated 3rd February 2010 (suit reinstated per Civil Appeal No. 325 of 2010)· [2021] KEELC 3445 (KLR)

Kenya Anti-Corruption Commission v Willesden Investment Limited & 6 others; City Council of Nairobi (Interested Party) [2021] KEELC 3445 (KLR)

High Court of Kenya
11 February 2021
2,630 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

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A Kenyan court froze a contested Nairobi property but refused to block payment of a judgment debt already upheld by higher courts.

What this practically means

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Executive summary

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This ruling by the High Court (Obaga J) determined a Chamber Summons dated 3rd February 2010 filed by the Applicant (Nairobi City County/plaintiff) seeking a temporary injunction over LR No. 209/12748, IR No. 66986 (between Nyayo House and Hotel InterContinental), and orders restraining the 6th Respondent (Kenya Hotel Properties Limited) from paying the 1st Respondent (Willesden Investments Limited) the decretal sum awarded in HCCC No. 367 of 2000 as reduced by the Court of Appeal in Civil Appeal No. 149 of 2007, or in the alternative, that the decretal sum be paid into court. The suit had been struck out in 2010 but reinstated by the Court of Appeal on 22nd March 2019 with directions that it and the chamber summons be heard on merits. The Applicant contended the suit property was fraudulently carved out of Kaunda (Cardinal Otunga) Street by reducing the road width from 80 feet to 37.76 feet, making the title fraudulent and the property inalienable public land. The 1st to 5th Respondents claimed to be innocent purchasers for value with indefeasible title. The court framed three issues: whether the Applicant met the injunction threshold; whether it had jurisdiction to grant relief declined by higher courts; and costs. It found a prima facie case with probability of success, held that the balance of convenience tilted towards public interest, and applied Joseph Ntombura and Michael Osundwa Sakwa. However, because the Court of Appeal and Supreme Court had declined stay of execution, the court held it was out of order to grant prayers 4 and 5. Only prayer 3 (injunction over the suit property) and prayer 7 (costs) were allowed.

Key legal issues

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01

Prima facie case for injunction over the suit property

Holding

A prima facie case with probability of success was established

Reasoning

The Applicant alleged that the suit property, formerly part of Kaunda Street (now Cardinal Otunga Street), was created by fraudulently reducing the road width from 80 feet to 37.76 feet, and that the allottee Centre Park Limited did not exist in the Companies Registry or Registrar of Societies. Since the court cannot make final findings on affidavit evidence, these matters require a full trial. On the materials, the Respondents were properly called upon to explain, satisfying the prima facie case threshold.

p. 3
02

Irreparable harm and balance of convenience

Holding

Balance of convenience tilts towards protecting public interest

Reasoning

Applying Joseph Ntombura v Godfrey Simiyu, the test is whether the applicant, not the respondent, will suffer irreparable harm. Applying Michael Osundwa Sakwa, there is public interest that harm not be caused to the nation or public. Given the traffic gridlock caused by narrow roads in the CBD, public interest outweighs private interests, and even with doubts the balance of convenience favours protecting the public.

p. 4
03

Jurisdiction to grant relief declined by higher courts

Holding

The court lacked jurisdiction to grant prayers 4 and 5 as stay had been declined by the Court of Appeal and Supreme Court

Reasoning

The Court of Appeal and Supreme Court had declined stay of execution of the decree in HCCC No. 367 of 2000. For this court to grant an injunction restraining payment of the decretal sum would amount to granting what higher courts refused, disrespecting the hierarchy of courts. The court therefore confined itself to prayer 3, the injunction over the suit property itself.

p. 4

Legal principles established

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  • The irreparable-harm test for injunctions is assessed from the applicant's perspective
  • Public interest demands that private interests yield where they conflict with public interest

Court orders

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  1. 1.Temporary injunction restraining the Defendants, their servants, agents or any other person from wasting, damaging, alienating or in any other way further alienating or interfering with LR No. 209/12748, IR No. 66986 in Nairobi pending the hearing of the suit
  2. 2.Costs of the application provided for (prayer 7 allowed)

Authorities

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Cases cited (4)

  • Joseph Ntombura Vs Godfrey Simiyu & 4 others
    (2018) eKLR
  • Michael Osundwa Sakwa Vs Chief Justice and President of the Supreme Court of Kenya & Another
    (2016) eKLR
  • Willesden Investments Limited Vs Kenya Hotel Properties Limited
    HCCC No. 367 of 2000
  • Willesden Investment Limited Vs City Council of Nairobi
    HCCC No. 24 of 2008
Jurisdiction invoked
Inherent civil jurisdiction of the High Court over the suit and interlocutory injunction application (Chamber Summons dated 3rd February 2010)

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, "Kenya Anti-Corruption Commission v Willesden Investment Limited & 6 others; City Council of Nairobi (Interested Party) [2021] KEELC 3445 (KLR)", Case Analysis (2021). Chamber Summons dated 3rd February 2010 (suit reinstated per Civil Appeal No. 325 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3445/eng@2021-02-11

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