Cinatine Enterprises Limited v Athi River Housing Company Limited & another (Environment & Land Case 152 of 2019) [2024] KEELC 3847 (KLR)
The bottom line
#Kenya's Environment and Land Court protected an occupant's possession using a status quo order instead of an injunction, and refused to strike out the suit.
What this practically means
#Executive summary
#Key legal issues
#Whether temporary injunctive relief should issue to the Plaintiff
The Court declined a formal injunction but granted status quo under prayer 4, preserving the Plaintiff's quiet possession of the suit properties pending determination
Applying Giella v Cassman Brown and Nguruman, the Court held that preserving the status quo best served the overriding objective where both parties held interests needing preservation. Citing Fatuma Abdi Jillo and Thugi River Estate, it found a status quo order ancillary, not dependent on proof of a prima facie case, and a legitimate case-management tool. The Court therefore granted prayer 4 rather than the injunction in prayer 3.
Whether the Plaintiff lacked locus because its verifying director was allegedly not a director at filing
Lack of authority is evidentiary, not a point of law justifying striking out; the deponent must first be given opportunity to rebut
Relying on Alfred Njau and Julian Adoyo Ongunga on the cardinality of locus standi, the Court nonetheless held that where evidence of non-authorization is produced, the burden shifts to the officer to prove authorization, requiring production and interrogation of evidence. It would be a procedural technicality to strike out the suit before the deponent can respond, and no prejudice was shown.
Whether the suit discloses a reasonable cause of action justifying striking out
The Amended Plaint discloses a reasonable cause of action; the disputes over price, dates and ownership are matters for trial
Guided by Order 2 Rule 15, D T Dobie v Muchina and Yaya Towers v Trade Bank, the Court held striking out is drastic and summary jurisdiction must not become a mini-trial on affidavits. Disputed facts - the sale price (Kshs 30M vs 50M), the sale date, and the existence of a tenancy - can only be resolved at trial.
Whether the Plaintiff should be ordered to deposit monthly rent pending trial
Refused; existence of the alleged tenancy agreement, which the Plaintiff alleges is forged, must be determined at trial
The tenancy question is hotly contested, with the Plaintiff alleging forgery of the purported agreements. Determining whether a landlord-tenant relationship exists requires hearing parties and evaluating evidence, inappropriate at interlocutory stage. The Court therefore declined the alternative relief in the Defendants' application.
Legal principles established
#- A status quo order differs from an injunction; it does not depend on proof of a right or prima facie case and merely preserves the situation as it exists pending hearing
- Alleged lack of authority of a director to institute or verify a suit is an issue of evidence, not law, and should not warrant striking out at interlocutory stage where no prejudice is occasioned
- Striking out is a drastic remedy invoked only in plain and obvious cases
Court orders
#- 1.The Plaintiff's Application dated 5/02/2024 succeeds in terms of prayer 4: status quo to be maintained on the suit properties, no interference with the Plaintiff's quiet possession of LR No. 209/10638 IR 483328/1 & LR No. 209/18298 IR 109923 until the suit is heard and determined
- 2.Peace and tranquility to be maintained by all parties and their agents at the suit properties at all times during the pendency of the suit
- 3.Costs of the Plaintiff's application shall be in the cause
- 4.The 1st and 2nd Defendants' Application dated 7/02/2024 is dismissed with costs
- 5.Parties directed to comply with Order 11 of the Civil Procedure Rules to set down the suit for hearing expeditiously
- 6.Mention for pre-trial conference before the Deputy Registrar on 28/05/2024
- Jurisdiction invoked
- Sections 3 & 3A of the Civil Procedure Act and Order 40 Rule 1(a), Order 2 Rule 15(1), Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cinatine Enterprises Limited v Athi River Housing Company Limited & another (Environment & Land Case 152 of 2019) [2024] KEELC 3847 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3847/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.