Loresho Gem Limited & another v Registered Officials of Loresho North Residents’ Association (Environment & Land Case E224 of 2023) [2024] KEELC 777 (KLR)
The bottom line
#A Nairobi court refused to order a neighbour to demolish an access-blocking wall, ruling that disputed road ownership must be resolved at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Threshold for mandatory injunction
Not met; mandatory interlocutory injunctions require special circumstances and the clearest of cases
The court applied Locabail International Finance Ltd v Agro-export as approved in Kenya Breweries Ltd v Washington O. Okeyo, holding that a mandatory injunction which would amount to a major part of the relief claimed must be approached with caution and granted only in a clear case, with a higher degree of assurance than for a prohibitory injunction. No special circumstances were shown.
Prima facie case and balance of convenience for temporary injunction
Plaintiffs failed to establish a prima facie case; balance of convenience favours the Defendant/maintaining the status quo
Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found conflicting evidence on whether Loresho Close Road is public or private; the Director of Surveys' letter was inconclusive. Being unable to state authoritatively where the access road lies, the court held the balance of convenience lay in maintaining the status quo pending trial.
Legal principles established
#- A mandatory injunction on an interlocutory application requires special circumstances and a clear case, applying a higher standard than for prohibitory injunctions
- Where the court is in doubt, it should decide on the balance of convenience, which here lay in maintaining the status quo
Court orders
#- 1.The application is dismissed
- 2.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 Rules 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loresho Gem Limited & another v Registered Officials of Loresho North Residents’ Association (Environment & Land Case E224 of 2023) [2024] KEELC 777 (KLR)", Case Analysis (2024). Notice of Motion dated 20/12/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/777/eng@2024-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.