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ELCDismissedEnvironment & Land Case 388 of 2017· [2023] KEELC 21768 (KLR)

Mungai & another v Cheska Agencies Limited & another

Environment and Land Court
21 November 2023
LMLucy N. Mbugua
1,088 words in judgment
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The bottom line

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The Environment and Land Court refused to release Ksh.5 million or stop rent collection, ruling that full remedies must wait for the main trial.

What this practically means

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Executive summary

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The Plaintiffs, who claim under a sale agreement dated 8.9.2016 for parcel Nairobi/Block 129/289, moved the court by Notice of Motion dated 26.7.2023 seeking review and variation of the injunctive orders issued on 3.6.2021. They sought a temporary injunction restraining the 2nd Defendant from collecting rental income from the suit premises, a mandatory injunction compelling the 2nd Defendant to deposit into court all rental income collected from 1.6.2021, and an order that the Ksh.5 million already deposited into court by the Plaintiffs be deemed mesne profits and released to them. The application was anchored on the ground that the 1st Defendant had, without disclosure, discharged the charge over the suit property and transferred it to the 2nd Defendant on 18.11.2020 while the suit was pending. The 2nd Defendant opposed, arguing the prayers mirrored the substantive suit, that it had parted with possession by a sale on 14.7.2022 before being joined, and that the property was informally charged to Prime Bank. The court framed two issues: whether the orders of 3.6.2021 should be varied to release the Ksh.5 million as mesne profits, and whether the injunction thresholds were met. It held that releasing the deposit would dispose of a substantive prayer in the plaint at an interlocutory stage; that no irreparable injury compensable only by an injunction was shown; and that no special circumstances justified a mandatory injunction. The application was dismissed, the suit was barred from alienation, parties were directed to focus on the main trial, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the court should review its orders of 3.6.2021 and release Ksh.5 million as mesne profits

Holding

Review declined; release would amount to determining a substantive prayer in the plaint at interlocutory stage

Reasoning

The court accepted that the 1st Defendant had not disclosed the sale of the suit property when the 3.6.2021 orders were made, constituting new matter. However, granting mesne profits at this stage would dispose of prayer (d) of the plaint by way of an application, which is impermissible; the issue must await trial.

p. 2
02

Whether a temporary injunction should issue restraining the 2nd Defendant from collecting rent

Holding

Refused; no irreparable injury demonstrated and the issue would complicate pending contempt proceedings

Reasoning

The court noted the 2nd Defendant claims to have parted with possession by a sale on 14.7.2022, the Plaintiffs have never taken possession or controlled rent proceeds, and no injury uncompensable by damages was shown. The pending contempt matter against the 1st Defendant would be further convoluted by delving into rent collection at this stage.

p. 2
03

Whether a mandatory injunction should issue compelling deposit of rental income into court

Holding

Refused; special circumstances not demonstrated

Reasoning

Mandatory injunctions at the interlocutory stage are granted only in special circumstances, which the Plaintiffs failed to establish, following Silipet Properties Limited & another v Chege Mwaura & another [2017] eKLR.

Legal principles established

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  • A court may review its own orders under Section 80 of the Civil Procedure Act on the grounds of discovery of new matter, mistake or error apparent on the face of the record, or sufficient reason
  • A mandatory injunction at interlocutory stage requires demonstration of special circumstances
  • Substantive prayers in a plaint cannot be granted by way of interlocutory application

Court orders

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  1. 1.The application dated 26.7.2023 is dismissed; the orders sought are declined
  2. 2.The suit shall not be alienated in any manner from today
  3. 3.Parties are directed to focus on the main trial
  4. 4.Each party is to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (2)

  • Silipet Properties Limited & another v Chege Mwaura & another
    [2017] eKLR

    Special circumstances required for a mandatory injunction at interlocutory stage

  • Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another
    [2019] eKLR

    Parties should focus on disposal of the main suit rather than serial interlocutory applications

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Mungai & another v Cheska Agencies Limited & another", Case Analysis (2023). Environment & Land Case 388 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21768/eng@2023-11-21

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