[2023] KEELC 18683 (KLR)
The court found that the plaintiff had not demonstrated any special circumstances justifying the grant of a mandatory injunction at the interlocutory stage. Both parties claimed ownership of the suit property, making the dispute complex and unsuitable for summary determination. Furthermore, the relief sought in the...
Source-derived case information.
- Citation
- [2023] KEELC 18683 (KLR)
- Parties
- Plaintiff: Lilian Njeri Njoroge; Defendant: Kennedy Mwangi Mwaniki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E045 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Mandatory Injunction Application
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Mandatory Injunction, Eviction Orders, Ownership Dispute, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Njeri Njoroge
Plaintiff
Kennedy Mwangi Mwaniki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Mandatory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction compelling the defendant to vacate the suit land at the interlocutory stage.
- 2 Whether special circumstances exist to warrant the grant of a mandatory injunction before full trial.
- 3 Whether granting the injunction would amount to granting a major relief at an interlocutory stage.
Ratio Decidendi
The court found that the plaintiff had not demonstrated any special circumstances justifying the grant of a mandatory injunction at the interlocutory stage. Both parties claimed ownership of the suit property, making the dispute complex and unsuitable for summary determination. Furthermore, the relief sought in the application was identical to the substantive relief sought in the main suit, and granting it at this stage would effectively dispose of the core issue before trial. The court therefore dismissed the application for a mandatory injunction, holding that such orders are reserved for clear cases or where special circumstances are shown, neither of which was present here.
Court Disposition
application dismissed
Orders
- The notice of motion application dated February 3, 2023 is dismissed.
- Costs of the application shall abide the outcome of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
Njoroge v Mwaniki (Environment & Land Miscellaneous Case E045 of 2023) [2023] KEELC 18683 (KLR) (6 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18683 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Miscellaneous Case E045 of 2023
LN Mbugua, J
July 6, 2023
Between
Lilian Njeri Njoroge
Plaintiff
and
Kennedy Mwangi Mwaniki
Defendant
Ruling
1. Before me is a notice of motion application dated February 3, 2023 where the plaintiff is seeking a mandatory order of injunction against the defendant to vacate from land parcel Nairobi /Block 136/12241, the suit land, and that the OCS Kayale Police Station do assist in enforcement of the said orders.
2. The application is premised on grounds on its face and on the supporting affidavit of the applicant. The plaintiff claims to be the registered owner of the suit property. However, the defendant has apparently trespassed on the said land and has put up a structure. Efforts to serve the defendant with the eviction notice have been futile.
3. In opposition to the claims of the plaintiff, the defendant has filed a replying affidavit dated March 7, 2023 where he claims that he bought the suit property when it had a two bedroomed permanent house way back in year 2016. He contends that the certificate of ownership in custody of the plaintiff must have been acquired irregularly.
4. On May 23, 2023, this court directed the plaintiff to file and serve her submissions by June 13, 2023, while the defendant was to file and serve his by June 20, 2023. None of the parties complied with these directions.
5. The issue for determination is whether the prayer for a mandatory injunction is warranted at this stage. The test on whether to grant a mandatory injunction or not was correctly stated by the Court of Appeal in Kenya Breweries Ltd v Okeyo[2002] 1 EA 109 as follows;“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edition paragraph 948 which reads:‘A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the Defendant attempted to steal a march on the plaintiff …. a mandatory injunction will be granted on an interlocutory application"
6. The applicant has not advanced any special circumstances which warrant the issuance of the mandatory orders of injunction. If anything, the dispute appears rather convoluted with each side of the coin staking a claim of ownership of the suit property.
7. What more, it is apparent that the plaintiff has sought for orders of eviction in her plaint. It follows that granting the orders sought in the current application would be tantamount to granting a major relief at an interlocutory stage-See Daniel Atibu Jasimba v Ainea Sandanyi Magana[2013] eKLR.
8. In the end, I find that the application dated February 3, 2023 is not merited, the same is hereby dismissed. Costs there of shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:M/s Mwangi holding brief for M/s Ngugi for DefendantsKinyua for PlaintiffCourt Assistant: Betsy