Kariuki v Iprocure Limited
The bottom line
#A Kitale court refused to stop a company using land the owner had leased out, because he waited nine months and a rent tribunal was already handling the dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case for trespass against the defendant
No prima facie case was established; the plaintiff was aware of and acquiesced to the defendant's presence for nine months before moving the court, and the defendant had a bona fide lease from the plaintiff's own tenant
The plaintiff discovered the defendant's occupation in September 2022 but only wrote letters seeking a copy of the lease, indicating awareness that the defendant had reasonable cause to be on the land. The defendant held a lease from Peter N. Mburu, the plaintiff's tenant, and the tenancy dispute was pending before the Business Premises Rent Tribunal. The plaintiff's delay and acquiescence defeated the claim of trespass.
Whether granting the injunction would interfere with the Business Premises Rent Tribunal's jurisdiction
An injunction would effectively terminate a lease that is the subject of pending Tribunal proceedings, thereby interfering with the Tribunal's jurisdiction
A Reference (BPRT/E027/2023) between the plaintiff and Peter M. Mburu over breach of the lease and the sub-lease to the defendant was pending before the Tribunal. Issuing an injunction against the defendant would amount to terminating the lease, a matter within the Tribunal's jurisdiction, and the non-remittance of rent was likewise a Tribunal matter unless the lease had first been terminated.
Whether the plaintiff would suffer irreparable harm not compensable by damages
The second limb would also have failed; the plaintiff had leased the land to Mburu and the Tribunal had not terminated that lease, so no irreparable injury was shown
The plaintiff had voluntarily let the suit land to Peter M. Mburu and taken no urgent court action. The defendant's business use of lorries and trucks was a normal incident of its business. The plaintiff's complaint about non-receipt of rent was not deponed to and was, in any event, a matter for the Tribunal. The court found the second limb would fail even had the first succeeded.
Legal principles established
#- The three Giella v Cassman Brown limbs for an interlocutory injunction are sequential hurdles which must each be surmounted in turn
- A prima facie case requires proof of an apparent infringement of a right with a probability of success, higher than an arguable case
- Facts not deponed to in an affidavit but raised only in submissions are inadmissible hearsay from the Bar
Court orders
#- 1.The Notice of Motion dated 9/05/2023 is dismissed with costs to the Respondent
- 2.Parties to appear before the court virtually on 22/11/2023 at 8.30 am to submit on whether the suit should proceed, given the subject matter is pending before the Business Premises Rent Tribunal
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; application under Order 69 and 51 of the Civil Procedure Rules, sections 1A, 3A and 63(e) of the Civil Procedure Act and Article 40 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Iprocure Limited", Case Analysis (2023). Environment & Land Case 25 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21410/eng@2023-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.