Patrick Roy Onyinsi v Rose Vugusta Lunda & another [2018] eKLR

Key Facts

Issues

• The court addressed a land ownership dispute where both the plaintiff and first defendant claimed to have purchased the same unsurveyed parcel from Kahindi Chengo Kombe for Kshs.170,000.00. The plaintiff alleged the first defendant (his estranged wife) sold the property without his consent, while the defendant denied the marriage and ownership claims. This ownership conflict necessitated a full trial to resolve.
• The judge determined the matter's value (Kshs.1,000,000 from the second defendant's purchase) fell within the Magistrate's Court jurisdiction. The case was transferred suo moto to the Chief Magistrate's Court in Mombasa for trial, overriding the original Environment and Land Court jurisdiction.
• The court evaluated the plaintiff's request for an interlocutory mandatory injunction to demolish structures on the disputed property. It applied the higher legal standard requiring clear justification for such orders, noting reluctance to grant them without special circumstances. The court concluded the plaintiff failed to meet this threshold.

Holdings

• The matter was transferred suo moto to the Chief Magistrate's Court, Mombasa, as the value of the subject property (Kshs.1,000,000) falls within the jurisdiction of the Magistrate's Court. The court emphasized that the dispute over ownership and the sale agreements must be resolved at the main trial.
• The court dismissed the Notice of Motion dated 11th July 2017, finding that the plaintiff had not established a prima facie case with a probability of success to warrant the injunction orders. The court was not satisfied with the plaintiff's allegations of irreparable injury if the injunction was not granted, noting that demolitions could be addressed upon final determination.

Remedies

• The court ordered that each party bear their own costs as the application was dismissed.
• The matter was transferred to the Chief Magistrate's Court, Mombasa, for trial and determination due to the subject matter's value.
• The application was dismissed as it lacked merit, and the court found no prima facie case established by the plaintiff.

Legal Principles

Precedent Name

• Giella v- Cassman Brown & Co
• Locabail International Finance Ltd -v- Agro Export & Another

Judge Name

Passage Text

• Having carefully considered the material before me, in my humble view a case for mandatory injunction has not been made out. I am not satisfied that the Plaintiff has established a prima facie case with a probability of success to warrant the injunction orders sought. The Plaintiff has also not shown what irreparable injury he will suffer in the event the injunction is not granted. The demolitions can still be undertaken in the event the Plaintiff succeeds at last.
• I am of the view that this is a matter that falls within the jurisdiction of the Magistrate's Court. Accordingly, I suo moto transfer this matter forthwith to the Chief Magistrate's Court, Mombasa for trial and determination.
• A Mandatory Injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the Court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than required for a prohibitory injunction.