[2019] KEHC 11442 (KLR)

[2019] KEHC 11442 (KLR)

The High Court found that the trial magistrate erred by applying the principles for prohibitory injunctions (as set out in Giella v. Cassman Brown) to an application for a mandatory injunction, which requires a higher threshold. The court emphasized that mandatory injunctions at the interlocutory stage should only be granted in exceptional and clearest cases, where special circumstances exist and the court feels a high degree of assurance that the injunction is rightly granted. In this case, the facts did not disclose any special circumstances or urgency justifying such relief. The appellant's occupation of the premises was as an invitee, and there was no evidence of her attempting to...

Citation
[2019] KEHC 11442 (KLR)
Parties
Appellant: HKM; Respondent: DKO; Respondent: DOO
Court
High Court
Court Station
High Court at Machakos
Jurisdiction
Kenya
Judgment Date
27 June 2019
Case Number
Civil Appeal 71 of 2018
Procedural Posture
Civil Appeal / Judgment on Interlocutory Appeal
Outcome
Appeal allowed. Ruling of the trial magistrate granting a mandatory injunction set aside and substituted with an order dismissing the application. No order as to costs of the appeal.
Judges
GV Odunga
Legal Topics
Mandatory Injunctions, Interlocutory Orders, Threshold for Injunctive Relief, Customary Law Marriage, Possession and Occupation
Source Language
English
Civil Procedure Land and Property Mandatory Injunctions Interlocutory Orders Threshold for Injunctive Relief Customary Law Marriage Possession and Occupation

Case Brief

Summary, issues, holding and outcome

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Parties

HKM

Appellant

DKO

Respondent

DOO

Respondent

Procedural Posture

Civil Appeal / Judgment on Interlocutory Appeal

Legal Issues

  1. 1 Whether the trial magistrate applied the correct legal threshold in granting a mandatory injunction at the interlocutory stage.
  2. 2 Whether special circumstances existed to justify a mandatory injunction compelling the appellant to vacate the premises.
  3. 3 Whether the facts of the case met the higher standard required for a mandatory injunction as opposed to a prohibitory injunction.

Ratio Decidendi

The High Court found that the trial magistrate erred by applying the principles for prohibitory injunctions (as set out in Giella v. Cassman Brown) to an application for a mandatory injunction, which requires a higher threshold. The court emphasized that mandatory injunctions at the interlocutory stage should only be granted in exceptional and clearest cases, where special circumstances exist and the court feels a high degree of assurance that the injunction is rightly granted. In this case, the facts did not disclose any special circumstances or urgency justifying such relief. The appellant's occupation of the premises was as an invitee, and there was no evidence of her attempting to...

Court Disposition

Appeal allowed. Ruling of the trial magistrate granting a mandatory injunction set aside and substituted with an order dismissing the application. No order as to costs of the appeal.

Orders

  • The decision of the learned trial magistrate made on 30th May, 2018 in Kangundo SPMCC No. 64 of 2018 allowing the application dated 30th April, 2018 is set aside.
  • The application dated 30th April, 2018 is dismissed with costs.