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ELCDismissedNotice of Motion application dated 29th August, 2023 (ELC suit at Mombasa)· [2024] KEELC 4874 (KLR)

Mutiso & another v South Sea Services Limited (Enviromental and Land Originating Summons 207 of 2021) [2024] KEELC 4874 (KLR)

Environment and Land Court
6 June 2024
4,711 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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A Kenyan court refused landlords' bid to break into premises and auction a tenant's goods, holding drastic mandatory orders must wait until the full case is heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. L. L. Naikuni, J) on a Notice of Motion dated 29th August 2023 by Beatrice Silu Mutiso and Amos Kilungya Mutiso, landlords/plaintiffs, against South Sea Services Limited, their former tenant and plaintiff in a counter-claim. The applicants sought a break-open order in favour of Kithemu Auctioneers over premises on Title No. Mombasa/MS/Block 1/242, removal of movable items to settle rent arrears of Kshs. 2,780,000.00 for January 2020 to December 2021, eviction pending the hearing of the counter-claim, and police supervision of execution. The application, grounded on Sections 3, 3A and 3B of the Civil Procedure Act, Rule 9 of the Auctioneers Rules and Section 11 of the Distress for Rent Act, was unopposed despite service. Counsel for the applicants relied on authority on mandatory injunctions at the interlocutory stage, contending special circumstances existed: total non-payment of rent since January 2020, termination of the tenancy by statutory notice effective 31st December 2021, and non-compliance with escrow deposit orders in ELC Appeal No. 68 of 2021. The court framed three issues and applied the Locabail test that mandatory injunctions are not granted at the interlocutory stage absent special circumstances and in clear cases only. It was not satisfied the case was unusually strong and clear, the counter-claim being undetermined. The application was dismissed in its entirety, status quo was ordered maintained pending the counter-claim, the matter was set for hearing on 21st January 2025 with a mention on 17th September 2024, and there were no orders as to costs.

Key legal issues

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01

Whether the break-in order and consequential orders were merited

Holding

The application was dismissed; the applicants failed to meet the higher threshold for a mandatory injunction at the interlocutory stage.

Reasoning

The court applied the Locabail test that a mandatory injunction is not granted at the interlocutory stage absent special circumstances, and then only in clear cases, with a high degree of assurance that it would be vindicated at trial. Although the tenant allegedly paid no rent from January 2020, the tenancy had been terminated and the goods removed, the court was not satisfied the case was unusually strong and clear, particularly as the Counter-Claim remained undetermined.

p. 10
02

Entitlement to the reliefs sought

Holding

Reliefs refused; instead status quo ordered pending hearing and determination of the Counter-Claim.

Reasoning

Applying the well-settled principles, the court found that granting eviction and a break-open order before finalizing the Counter-Claim would effectively decide the suit at the interlocutory stage. The court weighed the conflicting parties' interests and balance of convenience, concluding the drastic mandatory remedy should await full hearing, and preserved the position by directing maintenance of the status quo.

p. 10
03

Costs of the application

Holding

No orders as to costs, the court exercising its discretion to withhold costs despite the principle that costs follow the event.

Reasoning

The court acknowledged Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, citing Supreme Court decisions. However, it expressly reserved its discretion in not awarding costs, declining to burden either party notwithstanding the dismissal of the applicants' application.

p. 10

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases; the court must feel a high degree of assurance that at trial the injunction would appear to have been rightly granted.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court retains discretion.

Court orders

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  1. 1.The Notice of Motion application dated 29th August, 2023 is found to lack merit and is dismissed in its entirety
  2. 2.Status quo to be maintained pending the hearing and determination of the Counter-Claim
  3. 3.Hearing of the matter on 21st January, 2025, with a Mention on 17th September, 2024 to ascertain full compliance on the Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 3, 3A, 3B, 27(1)
  • Auctioneers RulesRule 9 (1997)
  • Distress for Rent Act, Cap 293Section 11
  • Constitution of Kenya, 2010generally
  • Civil Procedure Rules, 2010Order 11

Cases cited (9)

  • Joseph D. K. Kimani & Another v Simon Chege Kamangu
    [2016] eKLR
  • Locabail International Finance Limited v Agro-Export & Others
    [1986] 1 All ER 901
  • Zacharia Somi Ng'ang'a v another & Margaret Wangechi Njuguna
    [2020] eKLR
  • Kenya Breweries Limited & another v Washington Okeyo
    [2002] eKLR
  • Alex Wainaina t/a Joln Commercial Agencies v Johnson Mwangi Wanjihia
    [2015] eKLR
  • Shariff Abdi Hassan v Nadhif Jama Adan
    [CA 121/2005 (2006) eKLR
  • Jasbir Rai Singh v Tarchalan Singh
    (2014) eKLR
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    (2014) eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Sections 3, 3A and 3B of the Civil Procedure Act, Cap. 21; Rule 9 of the Auctioneers Rules (1997); Section 11 of the Distress for Rent Act, Cap 293

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, "Mutiso & another v South Sea Services Limited (Enviromental and Land Originating Summons 207 of 2021) [2024] KEELC 4874 (KLR)", Case Analysis (2024). Notice of Motion application dated 29th August, 2023 (ELC suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4874/eng@2024-06-06

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