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 the judgment (former employees of Telkom Kenya Ltd and Postal Corporation of Kenya v Teleposta Pension Scheme)· [2014] KEELC 636 (KLR)

Thomas O Opiyo & 127 others v Teleposta Pension Scheme Registerd Trustees [2014] KEELC 636 (KLR)

Environment and Land Court
28 October 2014
3,489 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Nairobi court stopped the eviction of long-serving retired Telkom and Postal workers, letting them stay in their homes while their case is decided.

What this practically means

#

Executive summary

#
The Plaintiffs, former employees of Telkom Kenya Ltd and Postal Corporation of Kenya occupying staff quarters on plot no. 209/12554 along Jogoo Road, moved the court by notice of motion dated 7th November 2013 seeking a temporary injunction to restrain the Defendant, Teleposta Pension Scheme, from entering, trespassing on or interfering with their occupation of the subdivided plots known as Nairobi/Block 55/204-251 pending trial. They claimed a first priority to purchase the plots by virtue of their employment, alleged inadequate eviction notices, and feared demolition and irreparable loss. The Defendant opposed, contending the houses were condemned as unfit for human habitation in 2007, that tenancies were cancelled in 2002 with a 60% house allowance paid instead, that no priority to purchase was ever granted, and that 30 of the 46 plots had already been sold and transferred to third parties. The sole issue framed was whether the Giella conditions for an interlocutory injunction were met. The court held the Plaintiffs' long occupation and threatened demolition engaged their Article 43 right to adequate housing, found the 30-day notice inadequate, and noted that procedural protections against forced eviction required determination at trial. Declining a strict application of the Giella criteria, the court preserved the subject matter by ordering the parties to maintain the status quo, with the Plaintiffs remaining in possession and occupation until the suit is determined. The parties were directed to comply with Order 11 within 60 days and a pre-trial conference was fixed for 25th January 2015. No order for costs was made; each party to bear their own costs.

Key legal issues

#
01

Whether the Plaintiffs established a prima facie case with a probability of success

Holding

The Plaintiffs demonstrated long occupation and that their constitutional right to adequate housing under Article 43 is threatened; procedural protections against forced eviction await trial determination

Reasoning

The court found the Plaintiffs had occupied the premises for over a decade and their right to adequate housing under Article 43 was threatened by threatened demolition. The Defendant had published only a 30-day notice, which the court held was insufficient for long-term occupants, citing Ibrahim Sangor Osman where a 21-day notice was found unreasonable. Whether due procedural protections against forced eviction were observed could only be determined after trial.

p. 5
02

Whether the strict Giella conditions should apply to the application

Holding

No; in the circumstances the subject matter of the suit should be preserved pending determination, having regard to the attendant circumstances and the balance of convenience

Reasoning

On evaluation of all the material and the differing positions of the parties on the terms on which the houses were to be sold, the court departed from strict application of the Giella criteria. Instead, weighing the circumstances and the balance of convenience, it invoked its jurisdiction under Article 23(3) to preserve the subject matter by directing maintenance of the status quo, with parties to fast-track the suit for trial.

p. 5
03

Whether the Plaintiffs should be given first priority to purchase the houses

Holding

Fair play would dictate that occupiers with means be given the opportunity to purchase if the houses are for sale, but the terms of sale are disputed and must await trial

Reasoning

The plaint seeks a declaration that the Plaintiffs are entitled to first priority to purchase. The court understood the Plaintiffs to assert priority based on long occupation as tenants and observed that fair play would dictate giving occupiers who can meet the Defendant's terms the opportunity to purchase. However, the terms of sale were unclear and contested, so the issue must be resolved at the hearing of the main suit.

p. 5

Legal principles established

#
  • A short notice of eviction to long-term occupants is inadequate and unreasonable
  • Forced evictions are prima facie violations of the right to adequate housing and States should be prohibited from intentionally making a person or community homeless following an eviction (General Comment No. 7 adopted in Satrose Ayuma)
  • The court has jurisdiction under Article 23(3) of the Constitution to grant conservatory orders where a Bill of Rights violation or threat is alleged

Court orders

#
  1. 1.The parties to maintain and observe the obtaining status quo whereby the Plaintiffs shall remain in possession and occupation of the suit premises until the suit is heard and determined
  2. 2.The parties to comply with Order 11 of the Civil Procedure Rules within the next 60 days to fast-track the hearing and final determination of the suit
  3. 3.Matter fixed for pre-trial conference on 25th January 2015 for taking of pre-trial directions
  4. 4.No order for costs in regard to the application; each party to bear their own costs

Authorities

#

Legislation

  • Business Premises and Rent Tribunal Act (CAP 301)section 4(4)
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010Articles 23(3), 39, 40, 43
  • Legal Notice No. 154Gazette Supplement No. 59 of 5th November 1999 (transfer of subject property to the Defendant)

Cases cited (8)

  • Omega Enterprises (Kenya) Ltd -vs- K.T.D.C and 2 others
    CA No. 59 of 1993
  • Patel -vs- East African Cargo Handling Services Ltd
    (1974) EA 75
  • Shah -vs- Mbogo
    (1967) EA 116
  • Giella -vs- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank & 2 others
    (2003) KLR 125
  • Ibrahim Sangor Osman -vs- Minister of State for Provincial Administration & Internal Security & 3 others
    (2011) eKLR
  • Susan Waithera Kariuki and others -vs- Town Clerk, Nairobi City Council and others
    Nairobi Petition No. 66 of 2010
  • Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others
    Nairobi Petition No. 65 of 2010
Jurisdiction invoked
Article 23(3) of the Constitution (jurisdiction to grant conservatory orders); inherent powers under section 3A of the Civil Procedure Act invoked by the Plaintiffs

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Thomas O Opiyo & 127 others v Teleposta Pension Scheme Registerd Trustees [2014] KEELC 636 (KLR)", Case Analysis (2014). Not stated in the judgment (former employees of Telkom Kenya Ltd and Postal Corporation of Kenya v Teleposta Pension Scheme). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/636/eng@2014-10-28

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