Kibera v Kamata & 2 others; Mutemi (Interested Party) (Environment and Land Appeal E030 of 2022) [2024] KEELC 7279 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant should be granted leave to remove structures allegedly erected on the suit properties in breach of the court's orders of 26th October 2023, with police security
- 2.Whether a mandatory injunction can be granted at the interlocutory stage
Key legal issues
#Whether the court could grant an interlocutory mandatory injunction to dismantle structures
No - mandatory injunctions at interlocutory stage require special circumstances and clear cases, with a high degree of assurance
Relying on Kenya Breweries Ltd v Okeyo and Washington Okeyo v Kenya Breweries, the court reiterated that a mandatory injunction requires positive steps and is final in nature, so it is granted only in clear cases or where the defendant has stolen a match. The Appellant set out no special circumstances and produced no evidence of the structures, their authors, or the timing of their construction, and did not demonstrate his own interest in the suit properties.
Whether the Appellant demonstrated a prima facie right to the suit properties
He did not; he laid no evidentiary foundation for any proprietary interest infringed by the Respondents
The court found that the Appellant neither indicated his interest in the suit property nor proved a right infringed by the Respondents. The 1st Respondent also asserted the Appellant was not a party to the lower court suit and had failed to prove interest sufficient to be enjoined, which the Appellant did not rebut with documents.
Legal principles established
#- A mandatory injunction is final in substance and may only be granted at the interlocutory stage in clear cases and on special circumstances, on a higher standard than a prohibitory injunction
Court orders
#- 1.The Notice of Motion dated 25th April 2024 is dismissed
- 2.Costs of the application to be borne by the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Commercial Chief Magistrate Court
- MCELC No. E160 of 2021
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act; appeal from the Chief Magistrate's Court
Relief refused
#Leave to remove structures erected on Dagoretti/Riruta/5818 and 5819
Appellant failed to prove the structures existed, were erected by the Respondents, or were erected after the court order; no special circumstances for an interlocutory mandatory injunction
Order directing the Officer Commanding Kabete Police Station to provide security
Fell with the main prayer for removal of structures, which was refused
Costs
Costs of the application shall be borne by the Appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This application therefore lacks merit and is hereby dismissed. Costs of the application shall be borne by the Appellant.
A mandatory injunction ought not be granted on an interlocutory application in the absence of special circumstances and then only in clear cases
Whereas a Prohibitory Injunction merely requires abstention from acting, a Mandatory Injunction requires the taking of positive steps
The Appellant has failed to adduce any evidence of the alleged structures on the suit property, constructed contrary to the orders of this court.
Issues in the judgment
#The case number and full names of the 2nd and 3rd Respondents are not stated in the judgment as provided
Counsel for an 'interested Party' appears in the appearance list although no interested party is described in the body of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibera v Kamata & 2 others; Mutemi (Interested Party) (Environment and Land Appeal E030 of 2022) [2024] KEELC 7279 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7279/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.