Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment

General Realty Company Limited v Da Li & another [2017] KEELC 511 (KLR)

Environment and Land Court
22 December 2017
407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

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

#
This was a first-instance application in an Environment and Land Court suit at Nairobi before K. Bor, J., in which the Plaintiff, claiming to have purchased L.R. No. 3734/1148 on Gitanga Road, Nairobi at a public auction conducted by Garam Investment Auctioneers on 4/7/2017 for Kshs. 100 million, sought a declaration of legal ownership, an injunction restraining the Defendants from trespassing or remaining on the Suit Property enforceable by the Officer Commanding Kilimani Police Station, and an order of eviction against the occupiers of a 7-bedroomed double storeyed house on the property. The Plaintiff asserted that statutory notices under the Land Act were served and that written demands to vacate had gone unheeded. The Defendants were served but did not enter appearance. Relying on Maher Unissa Karim v Edward Oluoch Odumbe (2015) eKLR and Ahmed Ibrahim Suleiman and Another v Noor Hamisi Surur (2013) eKLR, the Plaintiff urged that a mandatory injunction issue at the interlocutory stage, arguing that delay would cause prejudice and that the sale had not been challenged. The court applied the principle that a mandatory injunction on an interlocutory application is granted only in clear cases and in special circumstances. Examining the affidavit and supporting documents, it found no evidence of payment of the Kshs. 100 million purchase price, held this was not a clear case to be decided at once, and directed that the matter proceed to trial. The court granted prayers 4 and 5 of the application dated 31/10/2017 and awarded the Plaintiff the costs of the application. Judgment dated and delivered at Nairobi on 22nd December 2017.

Questions the Court framed

#

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

  1. 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. 2.Whether a mandatory injunction should be granted on the interlocutory application to evict the Defendants/occupiers pending trial
  3. 3.Whether interim relief (prayers 4 and 5 of the application dated 31/10/2017) should issue

Key legal issues

#
01

Whether a mandatory injunction could properly issue at the interlocutory stage to evict the Defendants from the Suit Property

Holding

No. The threshold of 'clear case' and special circumstances was not met; the matter ought to proceed to trial.

Reasoning

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.

p. 2
02

Whether interim relief (prayers 4 and 5 of the application dated 31/10/2017) should be granted

Holding

Yes. The court granted prayers 4 and 5 of the application dated 31/10/2017, with costs to the Plaintiff.

Reasoning

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.

p. 2

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. 1.Prayers 4 and 5 of the application dated 31/10/2017 are granted
  2. 2.The Plaintiff is awarded the costs of the application
  3. 3.The matter is to proceed to trial

The bench

#

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

majority

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.

p. 2

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
p. 2Principles for interlocutory mandatory injunctions
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.
p. 2Application of the principles and direction to trial
The court grants prayers 4 and 5 of the application dated 31/10/2017. The Plaintiff will have the costs of the application.
p. 2Final orders and costs of the application

Issues in the judgment

#
minor

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.

minor

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.