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ELCDismissednull (not stated in the judgment)· [2022] KEELC 2505 (KLR)

Katsran Logistics Limited v ATC Kenya Operations Limited (Environment & Land Case 50 of 2021) [2022] KEELC 2505 (KLR)

Environment and Land Court of Kenya
19 July 2022
MOM.A. ODENY
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A landowner's bid to force a telecom company to remove its tower, pay rent, and deposit KShs 4 million failed because the case wasn't ready for trial-stage relief.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Malindi on a Notice of Motion dated 13th May 2021 by the Plaintiff, registered proprietor of Title No. Chembe/Kibabamche/390. The Plaintiff alleged that in 2010 the Defendant, a telecommunications company, unlawfully erected a signal tower on the suit property without authority and sought an order that the Defendant deposit security of Kshs. 4,000,000/- (said to equal mesne profits at prevailing lease rates), a permanent injunction compelling demolition and removal of the tower and rehabilitation of the land, remittance of rent for eleven years, and enforcement by the OCS Malindi. The Defendant opposed, asserting it held a lease dated 21st March 2016 over adjacent parcel Chembe/Kibabamche/210, had paid rent to that lessor, had vacated upon learning of the ownership dispute but was denied access to remove its equipment, and that ownership was pending in Judicial Review No. 3 of 2021 which the Plaintiff had concealed. The court framed three issues: prima facie case, security, and rent. It held that a permanent injunction cannot issue at interlocutory stage as it would determine the suit; that a mandatory injunction requires special circumstances and a higher degree of assurance per Kenya Breweries v Washington O. Okeya; that courts do not grant orders in vain since the Defendant had vacated; that security lacked a basis given the pending ownership question; and that rent remittance was premature. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff established a prima facie case justifying an interlocutory injunction

Holding

The application fails; the court cannot grant a permanent/mandatory injunction at interlocutory stage and the Defendant has already vacated the premises

Reasoning

The Plaintiff sought both temporary and permanent injunctions in the same application. A permanent injunction would determine the suit at interlocutory stage. A mandatory injunction requires special circumstances and a higher standard of proof. Further, the Defendant deponed it had vacated the land, so no order in vain would issue. The ownership dispute is pending before the same court.

p. 4
02

Whether the Defendant should deposit security equivalent to mesne profits of Kshs. 4,000,000/-

Holding

Refused; the Plaintiff gave no basis for the quantum and ownership of the land is yet to be determined

Reasoning

The Defendant entered a lease with the owner of parcel No. Chembe/Kibabamche/210 and was paying rent under it. Ordering rent payment before determining ownership would pre-empt the trial court's findings on the main suit.

p. 5
03

Whether the Defendant should remit rent for 11 years

Holding

Premature; can only be determined upon hearing the main suit

Reasoning

Whether the Defendant owes rent depends on main issues of ownership and authority that must be determined at the trial, so no interim order for remittance could issue.

p. 5

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and a higher standard of assurance than for a prohibitory injunction
  • Courts do not grant orders in vain
  • A permanent injunction cannot be granted at an interlocutory stage as it would determine the suit

Court orders

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  1. 1.Application dismissed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Computer Misuse and Cyber Crimes Actdesignation of critical infrastructure owner
  • Civil Procedure RulesOrder 21 [1]

Cases cited (13)

  • Giella v Cassman Brown & Co. Limited
    [1973] E.A 358
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
  • Central Bank of Kenya & another v Uhuru Highway Development LTD & 4 others
  • Tritex Industries Limited & 3 others v National Housing Corporation & Anor
    [2014] eKLR
  • Thomas Mungiria & 9 others v Joseph Mutuma & 4 others
    Meru H.C.C.C. No. 12 of 2010
  • Republic v Rosemary Wairimu Munene, Ex parte applicant v Ihururu Dairy Farmers Cooperative Society
    [2014] eKLR
  • Peter Muriuki Ngure v Equity Bank (K) Limited
    [2018] eKLR
  • Kenya Commercial Finance Co. LTD v Afraha Education Society
    [2001] 1 EA
  • Export Processing Zones Authority v Kapa Oil Refineries Limited & 6 others
    [2014] eKLR
  • Kenya Breweries Ltd & Another v Washington O. Okeya
    [2002] eKLR
  • Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib
    [2018] eKLR
  • Keystone Bank Limited & 4 others v I&M Holdings Limited & another
    [2017] eKLR
  • Tuffsteel Limited v Boleyn Magic Wall Panel Limited
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction; interlocutory application under Order 40 Rule 1 of the Civil Procedure Rules, 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, "Katsran Logistics Limited v ATC Kenya Operations Limited (Environment & Land Case 50 of 2021) [2022] KEELC 2505 (KLR)", Case Analysis (2022). null (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2505/eng@2022-07-19

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