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ELCDismissedNotice of Motion dated 16th January 2014 (suit over shop no. 1, LR No. 209/2746 Accra Road, Nairobi)· [2014] KEELC 614 (KLR)

Julius Muthamia v Mary Gacheri Mbaya & another [2014] KEELC 614 (KLR)

High Court of Kenya
30 September 2014
2,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi landlord's family dispute over a shop shows courts will not evict tenants in open possession without a full trial, and evidence like rent receipts and business permits matters.

What this practically means

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Executive summary

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The Plaintiff, claiming an informal lease from Raichiri Investment Company since 1980 and a fresh five-year lease dated 14th November 2012 over shop no. 1 on LR No. 209/2746, Accra Road, Nairobi, moved the court by notice of motion dated 16th January 2014 seeking an interlocutory injunction against his sister-in-law and nephew (the Defendants), an eviction order with the OCS Central Police Station to supervise, mesne profits from 1st December 2012, and general damages for trespass. He alleged the Defendants forcibly ejected his agent, Nicholus Kimathi Mutuma, in January 2014 and trespassed on premises leased to him. The Defendants, widow and son of the Plaintiff's late brother Japhet Mbaya M'Mutungi, swore they had run the business (Mugaine Stores) since the 1970s under their late father, took possession on his death in January 2002, had paid rent to the landlord, and held current business permits; they alleged the Plaintiff's lease was fraudulently obtained without disclosure. Applying the Giella v Cassman Brown conditions and the Kenya Breweries v Washington Okeyo test for mandatory injunctions, the court found the Defendants' unchallenged possession as month-to-month tenants, noted the Plaintiff's own exhibits bore the Defendants' business name, held he had established neither a prima facie case nor irreparable harm, found the balance of convenience favoured the Defendants in occupation, and held this was not a clear and plain case for a mandatory injunction. Mesne profits and damages were reserved to trial. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Prima facie case with a probability of success (Giella first condition)

Holding

Not established. The Plaintiff's claim to possession was contradicted by the Defendants' unchallenged evidence of occupation since 2002, rent receipts and current business permits; the exhibited water bill and 2012 business permit bore the Defendants' business name Mugaine Stores.

Reasoning

The court weighed the contested lease against the Defendants' unchallenged possession evidence. Apart from electricity bills, the Plaintiff's exhibits (the water bill dated 12th January 2002 and the 2012 business permit) bore the name Mugaine Stores, which the Defendants claim as their own. The Defendants' evidence of carrying on business since taking over from their late father in 2002 was not challenged, defeating the Plaintiff's claim of possession.

p. 4
02

Irreparable harm and balance of convenience

Holding

Neither favoured the Plaintiff. The Defendants, in occupation and running the business, stood to lose irreparably if evicted; any loss to the Plaintiff was compensable in damages.

Reasoning

The Defendants were in actual occupation, operating the business, paying rent to the landlord, and held permits and employee licences. The court found they would suffer irreparable loss if the injunction issued, and that the Plaintiff, not being in occupation, could await trial without suffering uncompensable harm. The balance of convenience therefore lay with the Defendants in possession.

p. 4
03

Mandatory injunction (Kenya Breweries v Washington Okeyo conditions)

Holding

Refused. The case was not clear and plain and no special circumstances justified a mandatory injunction at the interlocutory stage.

Reasoning

The court applied the Court of Appeal's test in Kenya Breweries Ltd v Washington Okeyo, which requires a clear and plain case or special circumstances for a mandatory injunction. Given that the Plaintiff had failed to establish possession or a prima facie case, and the Defendants were in open occupation as month-to-month tenants, no special circumstances existed to justify the exceptional relief of eviction at the interlocutory stage.

p. 4

Legal principles established

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  • A party in open, unchallenged possession of premises, paying rent and holding current business permits, has an interest that cannot be ignored in an interlocutory injunction application
  • A mandatory injunction may only issue in a clear and plain case or where special circumstances are established, per Kenya Breweries Ltd v Washington Okeyo
  • Mesne profits and general damages for trespass are final relief that cannot be granted on an interlocutory application

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 16th January 2014 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 60(c)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Kenya Breweries Ltd and another -vs- Washington Okeyo
    (2002) 1 E.A. 109
Jurisdiction invoked
Section 3A and 60(c) of the Civil Procedure Act and Order 40 Rules 1, 2 and 4 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Julius Muthamia v Mary Gacheri Mbaya & another [2014] KEELC 614 (KLR)", Case Analysis (2014). Notice of Motion dated 16th January 2014 (suit over shop no. 1, LR No. 209/2746 Accra Road, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/614/eng@2014-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.