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ELCDismissedNot stated in the judgment

Kibera v Kamata & 2 others; Mutemi (Interested Party) (Environment and Land Appeal E030 of 2022) [2024] KEELC 7279 (KLR)

Environment and Land Court
31 October 2024
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Appellant, Joseph Kiguru Kibera, moved the Environment and Land Court in Nairobi by a Notice of Motion dated 25th April 2024 under Sections 3 and 3A of the Civil Procedure Act. He sought leave to remove structures allegedly erected by the Respondents on suit properties Dagoretti/Riruta/5818 and 5819, at the Respondents' costs, together with an order that the Officer Commanding Kabete Police Station provide security during the removal. He relied on cease and desist orders issued by the same court on 26th October 2023, which stayed proceedings in MCELC No. E160 of 2021 (Milimani) and restrained the Respondents from evicting the estate of John Kibera Njoroge or erecting structures pending appeal. The 1st Respondent opposed, contending the application was frivolous and an abuse of process, that the Appellant had no demonstrated interest in the properties, and that no appeal had been filed. The court noted judicially that the record of appeal had been filed on 24th April 2024. Applying the settled principles from Kenya Breweries Ltd v Okeyo and related authorities, the court held that an interlocutory mandatory injunction is final in nature, granted only in clear cases and special circumstances on a higher standard than a prohibitory injunction. The Appellant had adduced no evidence of the structures, their authorship or timing, and had shown no prima facie proprietary interest. The application was dismissed with costs to the Appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether a mandatory injunction can be granted at the interlocutory stage

Key legal issues

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01

Whether the court could grant an interlocutory mandatory injunction to dismantle structures

Holding

No - mandatory injunctions at interlocutory stage require special circumstances and clear cases, with a high degree of assurance

Reasoning

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.

p. 4
02

Whether the Appellant demonstrated a prima facie right to the suit properties

Holding

He did not; he laid no evidentiary foundation for any proprietary interest infringed by the Respondents

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 25th April 2024 is dismissed
  2. 2.Costs of the application to be borne by the Appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

Order directing the Officer Commanding Kabete Police Station to provide security

Fell with the main prayer for removal of structures, which was refused

p. 4

Costs

Costs of the application shall be borne by the Appellant

Quotable passages

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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.
p. 4Disposition - dismissal of the application and costs
A mandatory injunction ought not be granted on an interlocutory application in the absence of special circumstances and then only in clear cases
p. 3Test for interlocutory mandatory injunction
Whereas a Prohibitory Injunction merely requires abstention from acting, a Mandatory Injunction requires the taking of positive steps
p. 3Distinction between prohibitory and mandatory injunctions
The Appellant has failed to adduce any evidence of the alleged structures on the suit property, constructed contrary to the orders of this court.
p. 3Evidentiary burden on the applicant

Issues in the judgment

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minor

The case number and full names of the 2nd and 3rd Respondents are not stated in the judgment as provided

minor

Counsel for an 'interested Party' appears in the appearance list although no interested party is described in the body of the ruling

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, "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.