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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 133 (KLR)

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)

Environment and Land Court
24 January 2024
4,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, through its Receiver and Manager Mandhav Bhandari appointed by Equity Bank Kenya Limited under a debenture, moved the court by Notice of Motion dated 20th June 2023 seeking a temporary prohibitory injunction and an interlocutory mandatory injunction compelling the estate of Martha Wangui Muriithi (deceased), through the Defendants, to give vacant possession of LR No. 2951/37 - Nairobi in Lower Kabete, with default eviction. The Defendants opposed through a preliminary objection and grounds of opposition, contending the suit violated Order 3 Rule 2, Order 4 Rule 1 and Section 19 of the Civil Procedure Act and the Companies Act, and that the property was their family home of over 50 years, transferred without authority by a mere life interest holder under the Law of Succession Act. The court framed three issues. It dismissed the preliminary objection, holding that the procedural lapses were curable and that a receiver/manager appointed under a debenture is the company's agent and may sue without a resolution. On the injunctions, it found that although the Plaintiff is the registered owner, the Defendants had raised triable issues on the validity of the transfer, and that the mandatory relief sought would establish a new state of things rather than restore the status quo, amounting to eviction before trial. The Notice of Motion was dismissed, as was the preliminary objection, and the court exercised its discretion to order maintenance of the status quo barring further construction on the property, with costs of the application in the cause.

Key legal issues

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01

Whether the preliminary objection on defective pleadings and Companies Act compliance is merited

Holding

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.

Reasoning

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.

p. 5
02

Whether the plaintiff is entitled to the prohibitory injunction

Holding

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.

Reasoning

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.

p. 7
03

Whether the plaintiff is entitled to an interlocutory mandatory injunction

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 20th June, 2023 is dismissed.
  2. 2.The Preliminary Objection dated 6th July, 2023 is dismissed as lacking merit.
  3. 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. 4.Costs of the application to be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 19; Sections 3, 3A
  • Civil Procedure RulesOrder 3 Rules 1 & 2; Order 4 Rules 1(1)(f), 1(2), 1(4) & (6); Order 2 Rule 4; Order 11; Order 40 Rule 1
  • Land Act, 2012Section 152E
  • Land Registration ActSection 35
  • Law of Succession ActSections 35, 37, 82, 83
  • Companies ActNot specified
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (16)

  • Giella v Cassman Brown
  • Multi Options Limited v Kalpana S. Jai & 2 Others
    (2009) eKLR
  • Nita Ganatra v Shimmers Plaza Limited & Another
    (2001) eKLR
  • Shariff Abdi Hassan v Nadhif Jama Adan
    (2006) eKLR
  • Monica Waruguru Kamau & Another v Innercity Properties Limited & 2 Others
    (2020) eKLR
  • Rahans Investments Limited v Amaranth Enterprises Limited
    (2009) eKLR
  • Lochab Brothers v Kenya Furfural Co. Ltd
    (1983) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    (1969) E.A 696
  • Puffins Investment Limited v Kishoro Leponyo Ntiapuyok & 2 Others
    (2013) eKLR
  • Peeraj General Trading & Contracting Company Limited, Kenya & another v Mumias Sugar Company Limited
    (2016) eKLR
  • Bandari Investments & Co. Ltd v Martin Chiponda & 139 others
    (2022) eKLR
  • Shepard Homes v Sandham
    (1970) 3 WLR Pg. 356
  • Locabail International Finance Limited v Agro-Export & Another
    (1986) 1 ALL ER 901
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Kenya Breweries Ltd v Washington Okeyo
    (2002) EA 109
  • James Maina Kimemia v James Maina Kimemia & another
    [2019] eKLR
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

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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, "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.