Mutiso & another v South Sea Services Limited (Enviromental and Land Originating Summons 207 of 2021) [2024] KEELC 4874 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the break-in order and consequential orders were merited
The application was dismissed; the applicants failed to meet the higher threshold for a mandatory injunction at the interlocutory stage.
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.
Entitlement to the reliefs sought
Reliefs refused; instead status quo ordered pending hearing and determination of the Counter-Claim.
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.
Costs of the application
No orders as to costs, the court exercising its discretion to withhold costs despite the principle that costs follow the event.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 29th August, 2023 is found to lack merit and is dismissed in its entirety
- 2.Status quo to be maintained pending the hearing and determination of the Counter-Claim
- 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.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.