Limuru Hills Limited (In Receivership) v Muriithi & another (Jointly sued as the legal representative of the Estate of Martha Wangui Muriithi) (Environment & Land Case E223 of 2023) [2024] KEELC 133 (KLR)
The bottom line
#Even a registered landowner cannot use an interim injunction to evict long-term occupants in Kenya when their defences raise genuine questions for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on defective pleadings and Companies Act compliance is merited
Not merited. Failure to indicate the case track and file documents under Order 3 Rule 2 is curable under the proviso read with Order 11; the verifying affidavit sufficiently verified the plaint; and a receiver/manager under a debenture needs no company resolution to sue.
The court applied Mukisa Biscuit on the nature of preliminary objections, found the procedural lapses curable matters of form, invoked Article 159(2)(d) against technicality, and followed Multi Options Limited v Kalpana S. Jai holding that a crystallized debenture vests authority in the receiver/manager as agent of the company to litigate in the company's name without directors' permission.
Whether the plaintiff is entitled to the prohibitory injunction
No. Both prayers aimed at vacant possession rather than preservation, and the Defendants raised triable issues regarding the validity of the transfer by the deceased administrator of the family property.
The court distinguished the purpose of temporary injunctions (preservation) from the eviction-sought orders. The Plaintiff's title was not disputed, but the grant or certificate of confirmation was not exhibited, and the claim that the deceased held only a life interest under sections 35 and 37 of the Law of Succession Act raised triable issues best resolved at full hearing.
Whether the plaintiff is entitled to an interlocutory mandatory injunction
No. The higher threshold for mandatory injunctions was not met; the orders would establish a new state of things and effectively grant final relief at the interlocutory stage.
Relying on Locabail International Finance and Malier Unissa Karim, the court held mandatory injunctions require special circumstances, a clear case, and a high sense of assurance. The Defendants were in long possession; granting the orders would amount to eviction and demolition, the very relief sought in the suit, and would disadvantage the Defendants before trial.
Legal principles established
#- A receiver/manager appointed under a debenture is an agent of the company and may institute suit in the company's name without a shareholders'/directors' resolution; the appointment is governed by the debenture, not the Companies Act.
- A mandatory injunction will not be granted interlocutorily where it would establish a new state of things rather than restore the status quo, absent compelling circumstances and immediate pressing injury.
- Preliminary objections must raise pure points of law and cannot succeed where facts must be ascertained; procedural non-compliance with Order 3 Rule 1 and 2 and Order 4 Rule 1(2) of the Civil Procedure Rules is curable and not fatal, having regard to Article 159(2)(d) of the Constitution.
Court orders
#- 1.The Notice of Motion dated 20th June, 2023 is dismissed.
- 2.The Preliminary Objection dated 6th July, 2023 is dismissed as lacking merit.
- 3.An order that the status quo prevailing as at the date of delivery of the ruling be maintained, entailing no further construction or development on the suit property by the Defendants or anyone claiming under them or the estates of the late Martha Wangui Muriithi or the late Ishmael Elijah Muriithi, pending determination of the suit.
- 4.Costs of the application to be in the cause.
- Jurisdiction invoked
- Original civil jurisdiction; interlocutory application under sections 3 and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Limuru Hills Limited (In Receivership) v Muriithi & another (Jointly sued as the legal representative of the Estate of Martha Wangui Muriithi) (Environment & Land Case E223 of 2023) [2024] KEELC 133 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/133/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.