[2007] KEHC 1375 (KLR)
The court found that the application did not meet the threshold for the grant of a mandatory injunction at the interlocutory stage. The case was not clear, nor did it present special circumstances, particularly as the respondent had not been heard. The court emphasized that mandatory injunctions at the interlocutory...
Source-derived case information.
- Citation
- [2007] KEHC 1375 (KLR)
- Parties
- Plaintiff: Arthur Nkonge; Defendant: Weru Tea Factory Co. Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 58 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Mandatory Injunctions, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Arthur Nkonge
Plaintiff
Weru Tea Factory Co. Ltd
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction restraining the defendant from withholding monthly payments for green tea leaves delivered.
- 2 Whether the circumstances of the case meet the threshold for granting a mandatory injunction at the interlocutory stage.
Ratio Decidendi
The court found that the application did not meet the threshold for the grant of a mandatory injunction at the interlocutory stage. The case was not clear, nor did it present special circumstances, particularly as the respondent had not been heard. The court emphasized that mandatory injunctions at the interlocutory stage are only granted in clear cases with special circumstances, and only where the court is highly assured that the injunction would be justified at trial. As these conditions were not met, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for a mandatory injunction is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 58 of 2007
ARTHUR NKONGE …………………………………………… PLAINTIFF
VERSUS
WERU TEA FACTORY CO.LTD ………….……………….. DEFENDANT
RULING
The application before seeks:-
“That this Honourable court may be pleased to restrain the defendant either through itself, servants, agents and/or employees from withholding monthly payments for the green tea leaves delivered to the respondent’s factory for each month”
That is clearly a mandatory injunction cleverly expressed as a prohibitory injunction. The settled approach as to whether to grant a mandatory injunction at an interlocutory stage is that the case must be clear and present special circumstances.
The court in Locaball International Finance Ltd V Agro Export & Others (1986) 1ALL ER at page 901 stated the law thus;
“ A mandatory injunction ought not be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once, or where the injunction was directed at a simple act which could be easily remedied …………..
Moreover before granting a mandatory injunction, the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted …………..”
In the instant application it is the applicants contention that the respondent has flatly refused to pay to him Kshs.108, 423/=, being the value of green tea leaves delivered to the respondent.
The respondent, despite service did not respond to the application, neither was it represented during the hearing of this application. At this stage, without hearing the respondent’s position, this application cannot be described as clear. It does not present special circumstances. It is not, therefore, suitable for the grant of mandatory injunction.
For these reasons it is dismissed with no orders as to costs.
DATED AND DELIVERED AT MERU THIS 3RD DAY OFOCTOBER, 2007
W. OUKO
JUDGE