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Court of AppealDismissed

Kamau Mucuha v Ripples Ltd [1993] KECA 82 (KLR)

Court of Appeal
10 March 1993
AHA.R.W. HancoxRKR.O. KwachACA.M. Cockar
6,052 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a landlord who illegally evicts a tenant cannot benefit from that self-help and must restore the tenant's possession.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by Kamau Mucuha (head sub-lessor) seeking a stay of execution of the ruling of Mwera J of 17th September 1992 in HCCC 4522 of 1992, which granted The Ripples Ltd (sub-tenant) both a prohibitory injunction and a temporary mandatory injunction reinstating it in Shop No 1, LR 209/4985 Mfangano Street, Nairobi, following distress for rent and eviction on 28th July 1992 and immediate sub-letting to Unitrade Printers Ltd. Counsel for the applicant relied on Shepherd Homes v Sandham, Locabail, Wrotham Park and Githunguri v Jimba Credit Corporation to argue that a temporary mandatory injunction is exceptional relief requiring a high degree of assurance of success, that the premises had been converted to a printing press and let to a stranger, and that the respondent was guilty of delay. In three concurring judgments the Court accepted those principles but held they do not apply where the defendant has himself disturbed the status quo by unlawful self-help: following Thompson v Park, the status quo to be preserved is that existing before the illegal acts. The respondent had acted with reasonable promptitude, and the applicant had made no attempt whatsoever to comply with the order, being in flagrant disobedience, and could not retain the advantage of his blatantly unlawful act. The Court deprecated the police-assistance clause in the extracted order as unlawful and ultra vires. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant had an arguable appeal and whether its success would be rendered nugatory if the stay of Mwera J's order were not granted
  2. 2.Whether a temporary mandatory injunction may properly be granted to restore a status quo disturbed by the defendant's own unlawful self-help eviction
  3. 3.Whether the respondent's delay in filing suit disentitled it to relief

Key legal issues

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01

Whether a temporary mandatory injunction can issue where the defendant's own unlawful act has altered the status quo

Holding

Yes. The ordinary caution against interlocutory mandatory injunctions does not bar relief where the defendant has stolen a march on the plaintiff by self-help; the court will restore the position existing before the illegal act, provided the plaintiff moved promptly.

Reasoning

Hancox CJ accepted that temporary mandatory injunctions are exceptional relief requiring a high degree of assurance of success, per Shepherd Homes, Locabail and Canadian Pacific Railway v Gaud. But those principles leave out of account the situation where the defendant has disturbed the status quo by direct illegal action. Relying on Thompson v Park, the relevant status quo is that existing before the intruder's illegal acts. The respondent filed suit almost immediately after the eviction, satisfying the requirement of reasonable promptitude. Mwera J was therefore right to grant the mandatory injunction restoring possession.

p. 3
02

Whether an applicant in flagrant disobedience of the very order it seeks to stay is entitled to discretionary relief

Holding

No. The applicant had made no attempt to comply with any of the three obligations imposed by Mwera J, and could not use the court's process for a mischievous purpose.

Reasoning

Kwach JA declined to resolve the merits of the intended appeal at the interlocutory stage and decided the application on the applicant's track record. The applicant had neither refrained from alienating the premises nor reinstated the tenant nor returned the attached goods. Disobedience disentitled him to a stay; enforcement of injunctions is provided for under order 21 rule 28 of the Civil Procedure Rules, and police assistance is impermissible.

p. 6
03

Whether the transformation of the premises and the sublease to a third party made the injunction incapable of compliance or damages the better remedy

Holding

No. Nothing in the judge's order required restoration of the premises to their original condition, the remaining term was substantial given the option to renew, and a defendant who installed a third party following an unlawful eviction cannot rely on that state of affairs to resist reinstatement.

Reasoning

Kwach JA found no basis in the order for the suggested prohibitive restoration costs. Hancox CJ noted the extended term under the renewal option would run until 30th December 1995 or longer. Cockar JA held that allowing the applicant to retain the benefit obtained through the blatantly unlawful eviction, including the position of the third-party tenant, would reward the unlawful act; the order granting the injunctions ought not be disturbed at that stage.

p. 9

Legal principles established

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  • Where a defendant has taken the law into his own hands and disturbed the status quo by unlawful self-help, the status quo to be preserved is that which existed before the illegal act, and a temporary mandatory injunction may be granted to restore it.
  • A plaintiff who promptly resorts to the court after the defendant has defeated his rights by unilateral action may obtain an interlocutory mandatory injunction restoring the status quo, notwithstanding the general reluctance to grant such relief.
  • It is unlawful to use the police in a civil action to effect or aid private evictions or reinstatements; the Deputy Registrar acted wholly ultra vires in including such a provision in the extracted order.
  • A party who disobeys a court order and comes to the court for discretionary relief will not be granted that relief; a party may not retain an advantage obtained through a planned and blatant unlawful act.

Court orders

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  1. 1.Application for stay of execution of the ruling of Mwera J dated 17th September 1992 dismissed
  2. 2.Applicant to pay costs of the application to the respondent
  3. 3.Observation that paragraph 4 of the extracted order of 22nd September 1992 purporting to authorise police assistance was ultra vires the Deputy Registrar and unlawful

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AH
majority

Wrote the judgment

Hancox CJ reviewed the grant by Mwera J of prohibitory and mandatory injunctions following the applicant's self-help eviction of the respondent. He held that where a defendant has by his own unlawful act disturbed the status quo, the plaintiff may obtain an interlocutory mandatory injunction restoring the position prevailing before the illegal act, provided the plaintiff acted with reasonable promptitude. He found the respondent had acted promptly. He deprecated the inclusion in the extracted order of a provision permitting police assistance, holding it ultra vires, and dismissed the application with costs.

The status quo was in my judgment the state of affairs subsisting before the applicant entered the premises, evicted the respondent and installed another tenant.p. 4
RK
majority

Wrote the judgment

Kwach JA decided the application on the applicant's track record since the order of Mwera J: the applicant had made no attempt whatsoever to comply with the three obligations imposed (not to alienate, to reinstate the tenant, and to return or pay for the goods). He held the applicant in flagrant disobedience and refused to let him use the court's process for a mischievous purpose. He agreed that courts have jurisdiction to grant a mandatory injunction in an appropriate case, and that the only valid criticism was the police-assistance direction, since enforcement is governed by order 21 rule 28 of the Civil Procedure Rules.

He is, in my opinion, in flagrant disobedience of the order of the judge and now comes to this court for temporary dispensation.p. 6
AC
majority

Wrote the judgment

Cockar JA accepted the principles that mandatory injunctions are granted sparingly and on a higher standard than prohibitory injunctions, but held that a party who obtains an advantage through a planned and blatant unlawful act ought not to be allowed to retain it. He endorsed the passage from Halsbury's Laws quoted in Locabail that a mandatory injunction will be granted on an interlocutory application where the defendant has stolen a march on the plaintiff. He agreed the order of Mwera J ought not be disturbed at that stage and would dismiss the application with costs.

A party, as far as possible, ought not to be allowed to retain a position of advantage that it obtained through a planned and blatant unlawful actp. 9
On appeal from
High Court of Kenya at Nairobi
HCCC 4522 of 1992
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Relief refused

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Stay of execution of Mwera J's order (prohibitory and mandatory injunctions) pending appeal

The applicant had flagrantly disobeyed the order; a defendant who disturbs the status quo by unlawful self-help cannot invoke it to resist a mandatory injunction; the respondent acted with reasonable promptitude; and the intended appeal was not shown to be rendered nugatory

p. 4

Costs

Application dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Goddard, LJ held in Thompson v Park that the status quo was not that which existed after the intruder's illegal acts, but that which existed beforehand.
p. 3Status quo following unlawful self-help eviction
The status quo was in my judgment the state of affairs subsisting before the applicant entered the premises, evicted the respondent and installed another tenant.
p. 4Restoration of pre-eviction status quo
it would, in any event be unlawful to utilize the police in a civil action for the purpose of effecting or aiding private evictions or reinstatements. Including that paragraph the Deputy Registrar was acting wholly ultra vires.
p. 4Impermissible use of police in civil disputes
He is, in my opinion, in flagrant disobedience of the order of the judge and now comes to this court for temporary dispensation. He should not be allowed to use the process of this court for such a patently mischievous purpose.
p. 6Disobedience of court orders and entitlement to discretionary relief
For the foregoing however, I would dismiss the application, with costs to the respondent.
p. 4Disposition

Issues in the judgment

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minor

The demand amount is stated inconsistently within the judgment (Shs 97,920/- vs Shs 97,970/-).

minor

Affidavit dates are internally inconsistent (affidavit in reply dated 4th September, 1990, and supporting affidavit sworn 21st August, 1982, in a 1992 matter).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau Mucuha v Ripples Ltd [1993] KECA 82 (KLR)", Case Analysis (1993). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/82/eng@1993-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.