Background

Can mandatory injunctions be granted at an interlocutory stage? If so, when should they be granted? This was the question that prompted the appeal in this case.

The Environment and Land Court granted a mandatory injunction at an interim stage, ordering the appellant to vacate a residential property in Embakasi Nyayo Estate. He had purchased the property in 2015, from the 1^st Respondent, paid full price, renovated it and taken possession.

However, it later emerged that the property had earlier been sold to the 2^nd Respondent, who subsequently transferred to the 5^th Respondent, the registered proprietor at the time of the dispute. These competing proprietary claims prompted the ELC to order the appellant to vacate the property pending trial. The appellant’s contention was that the ELC misapplied the law on mandatory injunctions and prematurely determined substantive issues.

Issues for Determination

1. Whether the learned Judge misapplied the legal threshold for granting mandatory injunction at an interlocutory stage
2. Whether the trial Court erred by making findings that effectively determined the suit before a full trial.

Analysis

The Court affirmed that mandatory injunctions can be granted at an interlocutory stage but where exceptional and special circumstances exist. It cited with approval the case of Kenya Breweries Ltd v Washington Okello [2002] Eklr, where the Court held thus:

“The test whether to grant a mandatory injunction or not is correctly stated in in Vol 24 Italsbury’s Laws of England 4^th Edition at paragraph 948 which reads;-

 “A mandatory injunction can be granted on an interlocutory application as well as 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 it 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.”

The Court reiterated the trite appellate principle that appellate courts will not ordinarily interfere with trial court decisions unless the decision is manifestly shown that the court misdirected itself in the law, misapprehended the facts or reached a plainly wrong decision.

The Court emphasised the constitutional and statutory provisions on the protection of proprietary tenure, unless there was fraud or misrepresentation in the acquisition of the property.

On whether the trial Court properly granted the mandatory injunction, the court found that the trial court correctly reached the decision of granting a mandatory injunction. It noted that the appellant did not dispute that he had purchased the property from a party who had no registrable title at the time, nor did he deny that the 5^th Respondent held a duly registered title. In those circumstances, the trial court reached a correct finding to grant the mandatory injunction.

On the issue of whether the ELC prematurely determined substantive issues, the court drew an important distinction between final findings and prima facie assessments. While acknowledging that a court cannot conclusively determine ownership at an interlocutory stage, it held that a provisional finding was warranted for purposes of granting an interim relief. The Court observed that the ELC’s finding that the 5^th Respondent was a bona fide purchaser was not final, but merely prima facie.

Crucially, the Court underscored that:

“The right of a registered proprietor under section 26(1) of the Land Registration Act is protected unless it is shown that the title was acquired through fraud or misrepresentation.”

Since no specific or pleaded allegations of fraud had been established against the 5^th Respondent at the stage, the balance of convenience tilted in her favour.