[2007] KEHC 1726 (KLR)
The court found that the applicant's case did not meet the threshold for the grant of a mandatory injunction at the interlocutory stage. Although the respondent did not file a reply, the court noted that the refusal to pay was based on an arguable position regarding the quantity of tea bushes and deliveries. The...
Source-derived case information.
- Citation
- [2007] KEHC 1726 (KLR)
- Parties
- Plaintiff: Kithinji Kariba; Defendant: Weru Tea Factory Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Mandatory Injunction
- Outcome
- application dismissed
- Legal Topics
- Mandatory Injunctions, Interlocutory Orders, Contractual Payments, Agricultural Produce Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kithinji Kariba
Plaintiff
Weru Tea Factory Co. Ltd.
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Mandatory Injunction
Legal Issues
- 1 Whether the applicant has established a clear and special case for the grant of a mandatory injunction at the interlocutory stage.
- 2 Whether the respondent's refusal to pay for delivered green tea leaves justifies the issuance of a mandatory injunction.
Ratio Decidendi
The court found that the applicant's case did not meet the threshold for the grant of a mandatory injunction at the interlocutory stage. Although the respondent did not file a reply, the court noted that the refusal to pay was based on an arguable position regarding the quantity of tea bushes and deliveries. The court held that this was not a clear and special case warranting a mandatory injunction, and therefore dismissed the application.
Court Disposition
application dismissed
Orders
- The application for a mandatory injunction is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU Civil Case 56 of 2007
KITHINJI KARIBA …………………......……….....………… PLAINTIFF
VERSUS
WERU TEA FACTORY CO. LTD. ………...…….….….. DEFENDANT
RULING
In his application dated 15th June 2007, the applicant prays 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.”
Put another way, the applicant is seeking an order directing the respondent to pay the applicant for the green tea leaves delivered to in by the latter. That is clearly a plea for a mandatory injunction. The application is based on the grounds that in the years 2005 and 2006 the applicant delivered to the respondent a total of 7557. 50kg of green tea leaves valued at Kshs. 111,334. 30 which was acknowledged.
That the respondent has declined to pay on the ground that the delivery exceeded the applicant’s tea bushes. This was based on the investigation by the respondent, which, in the applicant’s view, was unreasonable, capricious and malicious.
There was no replying affidavit on grounds opposing these averments. As I have stated the order sought in this application is a mandatory injunction. It is now settled that such an order can only be made at any interlocutory stage in very clear and special cases.
In the present application, the court has only heard one side of the story. But even from that side it is clear that the respondent’s refusal to pay is based on some arguments. So even though the respondent has not replied to the application it is clear to me that this is not a clear case in which a mandatory injunction ought to issue. For that reason this application is dismissed.
Dated and delivered at Meru this 3RD day of OCTOBER, 2007.
WILLIAM OUKO
JUDGE