General Realty Company Limited v Da Li & another [2017] KEELC 511 (KLR)
The bottom line
#A Nairobi court refused to evict occupiers of a Gitanga Road property mid-case because the buyer showed no proof of paying Kshs 100 million; the matter goes to trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is entitled to a declaration that it is the legal owner of the development on L.R. No. 3734/1148, Gitanga Road Nairobi
- 2.Whether a mandatory injunction should be granted on the interlocutory application to evict the Defendants/occupiers pending trial
- 3.Whether interim relief (prayers 4 and 5 of the application dated 31/10/2017) should issue
Key legal issues
#Whether a mandatory injunction could properly issue at the interlocutory stage to evict the Defendants from the Suit Property
No. The threshold of 'clear case' and special circumstances was not met; the matter ought to proceed to trial.
The court applied the principles in Maher Unissa Karim v Edward Oluoch Odumbe and Ahmed Ibrahim Suleiman v Noor Hamisi Surur, that a mandatory injunction at interlocutory stage is granted only in clear cases and where the court is satisfied it would be rightful at trial. Examining the affidavit and supporting documents, the court found no evidence of payment of the Kshs. 100 million purchase price and declined to determine the matter at once, reserving the substantive ownership and eviction questions for trial.
Whether interim relief (prayers 4 and 5 of the application dated 31/10/2017) should be granted
Yes. The court granted prayers 4 and 5 of the application dated 31/10/2017, with costs to the Plaintiff.
Although the court declined the mandatory injunction sought, it considered the supported application and granted prayers 4 and 5. The judgment does not reproduce the text of those prayers. The Defendants, though served, did not enter appearance. Costs of the application were awarded to the Plaintiff.
Legal principles established
#- A mandatory injunction ought not to be granted on an interlocutory application unless there are special circumstances and only in clear cases where the court thinks the matter should be decided at once, and the court must be satisfied that the injunction would be rightful at trial.
- A claimant seeking to enforce rights arising from a public auction must prove payment of the purchase price; absence of such evidence defeats a claim for summary/interlocutory mandatory relief.
Court orders
#- 1.Prayers 4 and 5 of the application dated 31/10/2017 are granted
- 2.The Plaintiff is awarded the costs of the application
- 3.The matter is to proceed to trial
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not stated in judgment (first-instance suit before the Environment and Land Court)
Relief refused
#Mandatory injunction / order of eviction against the occupiers of the 7-bedroomed double storeyed house on the Suit Property (decided at once on the interlocutory application)
The court was not persuaded this was a clear case warranting a mandatory injunction at interlocutory stage; there was no evidence of payment of the Kshs. 100 million purchase price, so the matter should go to trial.
Costs
The Plaintiff will have the costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a mandatory injunction ought not to be granted on an interlocutory application unless there are special circumstances and only in clear cases where the court thinks the matter should be decided at once
The court has looked at the affidavit and documents in support of the application and is not persuaded that this is a clear case which ought to be decided at once. There is no evidence of payment of the purchase price of Kshs. 100 million. The matter ought to proceed for trial.
The court grants prayers 4 and 5 of the application dated 31/10/2017. The Plaintiff will have the costs of the application.
Issues in the judgment
#The judgment grants 'prayers 4 and 5' of the application dated 31/10/2017 without stating what those prayers were, while expressly declining the mandatory injunction/eviction sought; the exact content of the granted relief cannot be determined from the judgment.
The judgment does not state the case number, the name of the Plaintiff, or the names of the Defendants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "General Realty Company Limited v Da Li & another [2017] KEELC 511 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/511/eng@2017-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.