Eunice Njeri t/a Suncross Cafe & another v Michael Wainaina t/a Ngurish Investments Ltd [2014] KEELC 243 (KLR)

Although section 18(1) permits withdrawal and retransfer of proceedings from a subordinate court, the applicants' basis for seeking withdrawal was that the Tribunal's chairman had not reported to his station. The court found the Tribunal was now operational, so there was no need to transfer the causes to the High Court.

The Respondent argued the application should have been brought under Order 40. The court agreed the correct provisions were section 63 CPA and Order 40, but held the omission was curable because the court's overriding and supplemental powers under sections 3A and 63 allowed it to grant necessary interlocutory orders in the interests of justice.

Applying Giella v Cassman Brown, the court found the Applicants had not paid rent for February 2014 and had not disputed averments that they agreed to vacate. The Respondent held a statutory notice under section 119 of the Public Health Act and NEMA licence requiring renovations, so the court could not grant orders enabling contravention of the law; damages would be adequate.

Following Kenya Breweries v Washington Okeyo, a mandatory injunction requires special circumstances over and above a prima facie case, and only in clear cases warranting immediate decision. Since the Respondent was legally obliged to renovate the premises, the Applicants could not be allowed back until the works were done.