[2009] KEHC 1431 (KLR)
The court found that the applicant had established a prima facie case by demonstrating that the demand for rates was disputed and that the threatened sale of the suit premises would cause irreparable harm to the applicant's business. The court further held that the balance of convenience favored the applicant, as...
Source-derived case information.
- Citation
- [2009] KEHC 1431 (KLR)
- Parties
- Plaintiff: East African Storage Company Limited; Defendant: Municipal Council of Mombasa; Defendant: Joel Titus Musya t/a Makuri Enterprises Auctioneers
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 266 of 2008
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application allowed. Injunction granted as prayed in prayer (2) of the application. Costs in the cause.
- Judges
- JV Juma
- Legal Topics
- Injunctions, Land Rates Disputes, Auction Sales, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
East African Storage Company Limited
Plaintiff
Municipal Council of Mombasa
Defendant
Joel Titus Musya t/a Makuri Enterprises Auctioneers
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the defendants from disposing of the suit properties pending determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success.
- 3 Whether the applicant stands to suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the applicant had established a prima facie case by demonstrating that the demand for rates was disputed and that the threatened sale of the suit premises would cause irreparable harm to the applicant's business. The court further held that the balance of convenience favored the applicant, as the risk of loss and disruption to the applicant outweighed any prejudice to the defendants. Applying the principles in Giella v Cassman Brown, the court concluded that the applicant was entitled to an interlocutory injunction restraining the defendants from selling, transferring, or otherwise disposing of the suit properties pending the hearing and determination of the main suit.
Court Disposition
Application allowed. Injunction granted as prayed in prayer (2) of the application. Costs in the cause.
Orders
- The 1st and 2nd defendants, their servants, agents or employees are restrained from selling by public auction or private treaty, transferring, leasing, charging, mortgaging, or in any other way disposing of or dealing with Mombasa/Block I/388, Mombasa/Block I/390, and Sub-division Number 568, Section I Mainland...
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE 266 OF 2008
EAST AFRICAN STORAGE COMPANY LIMITED ............PLAINTIFF
VERSUS
MUNICIPAL COUNCIL OF MOMBASA ...................1ST DEFENDANT
JOEL TITUS MUSYA
T/A MAKURI ENTERPRISES AUCTIONEERS......2ND DEFENDANT
*****************************
RULING
Before court is the Chamber Summons dated 2nd October 2008 by which the Applicant seeks inter alia the following orders:-
“2 THAT the 1st and 2nd Defendants by themselves, their servants, agents or employees be restrained from selling by public auction or by private treaty, transferring, leasing, charging, mortgaging, or in any other way or manner disposing of or dealing with all those pieces or parcels of land known as:-
(a)Mombasa/BlockI/388
(b)Mombasa/BlockI/390 and
(c)Sub-division Number 568, Section I Mainland North, Mombasauntil the hearing and final determination of this suit or until further orders of this Honourable Court;”
The application was duly served on both the 1st and 2nd Defendants. Mr. Okongo appeared for the Applicant on the hearing date of 28/9/2009 whilst Mr. Ochwa appeared for the Municipal Council of Mombasa who are the 1st Defendants. The 2nd Defendants despite having been properly served did not appear in court to oppose the application.
The genesis of this dispute is the alleged non-payment of rates by the Applicants on the three parcels of land namely Mombasa/BlockI/388, Mombasa/BlockI/390 and Subdivision Number 568, Section I Mainland North, Mombasa (hereinafter jointly referred to as the “suit premises”). Mr. Okongo for the Applicant tells court in his oral submissions in support of this application that the 1st Defendant has issued to the Applicants a demand for rates totaling Kshs.21 million which sum is disputed by the Applicants. The 1st Defendant has also persistently advertised the Applicants in the daily press as rate defaulters and finally through the 2nd Defendants who are auctioneers the 1st Defendant have caused the suit premises to be advertised for sale leading to the filing of this present application to stay such sale pending the hearing and determination of the main suit.
The Applicants are therefore seeking injunctive orders. The pre-conditions to the granting of such injunctive orders were clearly and succinctly laid out in the celebrated case of Giella –vs- Cassman Brown. I have carefully considered the submissions of counsel and I have also perused and considered the relevant provisions of Rating Act Cap 267. I am convinced that the Applicant has indeed made out a prima facie case. I am further convinced that taking into account the nature of business undertaken by the Applicants on the suit premises they do stand to suffer irreparable harm if the orders sought are not granted. The balance of convenience tilts in favour of the applicants. I therefore allow this present application in terms of prayer (2) thereof. Costs in the cause.
Dated and Delivered at Mombasa this 12th day of October 2009.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Omollo holding brief for Mr. Ochwa for 1st Defendant/Respondent
Mrs. Kawere holding brief for Mr. Okongo for Plaintiff/Applicant
M. ODERO
JUDGE
12. 10. 2009