Kari Kingori v Panafric Hotel Limited [2021] KEELC 4231 (KLR)
The bottom line
#A Kenyan court dismissed a tenant's injunction bid because he filed no supporting affidavit, and moved the case to the Chief Magistrate's Court.
What this practically means
#Executive summary
#Key legal issues
#Effect of a notice of motion unsupported by a supporting affidavit
The application is bare and must fail; the court has no evidential material to evaluate it, and the only evidence on record is the defendant's replying affidavit which does not support the plaintiff
The amended motion was expressed as supported by an affidavit of Kari Kingori but none was annexed. The court held it could not evaluate the Giella criteria for an ordinary injunction or the Locabi criteria for a mandatory injunction without evidence. The plaintiff's plea to invoke Article 159 to dispense with evidence was rejected because injunctive jurisdiction is exercised judiciously on evidence.
Criteria for ordinary and mandatory interlocutory injunctions
The plaintiff failed to satisfy either the Giella criteria for an ordinary injunction or the Locabi criteria for a mandatory injunction
The court restated the Giella tripartite test (prima facie case, irreparable injury, balance of convenience) and the Locabi test requiring special circumstances, clear cases, and a high sense of assurance for mandatory interlocutory injunctions. With no supporting affidavit, neither standard could be satisfied, so the motion failed and costs followed the event.
Pecuniary jurisdiction and forum
The suit ought to be heard by the Chief Magistrate's Court at Milimani Commercial Courts, whose pecuniary jurisdiction is Kshs 20,000,000, and was transferred there
On its own motion the court reviewed the plaint and concluded that the claim fell within the pecuniary jurisdiction of the Chief Magistrate's Court at Milimani Commercial Courts, which it fixed at Kshs 20,000,000. It therefore transferred the suit for hearing and determination rather than continuing in the ELC.
Legal principles established
#- Injunctive relief, including under Article 159 of the Constitution, can only be granted on the basis of evidence; a notice of motion without a supporting affidavit cannot succeed
- A mandatory injunction at the interlocutory stage requires special circumstances, clear cases, and a higher standard of assurance than a prohibitory injunction
Court orders
#- 1.The amended notice of motion dated 26/2/2020 is dismissed
- 2.The plaintiff shall bear costs of the application
- 3.The suit is transferred to the Chief Magistrate Court at Milimani Commercial Courts for hearing and determination
- Jurisdiction invoked
- Jurisdiction following transfer of the suit from the High Court at Nairobi (by Odero J on 20/1/2020); Article 159 of the Constitution invoked by the plaintiff but declined as a basis to dispense with evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kari Kingori v Panafric Hotel Limited [2021] KEELC 4231 (KLR)", Case Analysis (2021). Ruling in suit transferred from High Court at Nairobi (plaint dated 17/1/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4231/eng@2021-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.