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ELCDismissedNot stated in the judgment· [2015] KEELC 256 (KLR)

Lucy Nyawira Kangari v Nairobi City County (? 228 of 2015) (Environment and Land) [2015] KEELC 256 (KLR)

Environment and Land Court
10 July 2015
2,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi tenant lost her bid to stop eviction after failing to show she had a strong case or losses money couldn't fix.

What this practically means

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Executive summary

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The Plaintiff, a tenant of house number 185/77, Joseph Kangethe Estate, brought a Notice of Motion dated 13th March 2014 seeking to restrain the Respondent (the landlord, formerly the City Council of Nairobi and now a county government) from evicting her or interfering with her occupation and quiet possession pending trial. She claimed she took over the tenancy from a previous tenant with the Respondent's consent, paid transfer fees and rent, inherited a sub-tenant, and that the Respondent arbitrarily locked the premises on 10th March 2015. The Respondent countered that the Plaintiff had illegally sublet the house to Bernard Mwenda Gitonga at Kshs 40,000/- per month against a monthly rent of Kshs 14,000/-, in breach of condition 13 of the tenancy agreement, and that it secured the house on 9th March 2015 to prevent vandalism, denying any eviction. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had not established a prima facie case: the pleadings did not show whether the sub-tenant was inherited or whether the Plaintiff was in breach, and her continued payment of rent without raising the sub-tenancy suggested it was with her sanction. The Plaintiff also failed to demonstrate irreparable damage not compensable by damages, per Nguruman Limited. Because the conditions are sequential, the balance of convenience did not fall for consideration. The application dated 13th March 2014 was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success for the grant of a temporary injunction

Holding

No prima facie case was established; the court could not discern from the pleadings whether the sub-tenant was inherited or whether the Plaintiff breached the tenancy conditions by subletting, and the Plaintiff's continued payment of rent without raising the sub-tenancy suggested the sub-tenant occupied with her sanction

Reasoning

The court weighed the Plaintiff's claim that she inherited a sub-tenant with the Respondent's assistance against the Respondent's assertion of a repudiatory breach of condition 13 of the tenancy agreement prohibiting underletting. No evidence substantiated the claim of inheritance. The Plaintiff paid rent throughout the sub-tenancy without notifying the Respondent, undermining her case. Applying Giella, the first limb failed.

p. 4
02

Whether the Plaintiff demonstrated irreparable loss not compensable by damages

Holding

The Plaintiff failed to demonstrate that she stood to suffer irreparable damage which could not be compensated by an award of damages

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen, the court held that the burden was on the applicant to demonstrate the nature and extent of the injury which could not be remedied by damages. The Plaintiff adduced no such demonstration; damages would adequately compensate her if she ultimately succeeded at the trial.

p. 4
03

Whether the balance of convenience should be considered

Holding

The court declined to consider the balance of convenience since the Plaintiff had failed the first two sequential conditions

Reasoning

Following Kenya Commercial Finance Company Ltd v Afraha Education Society and Nguruman Limited v Jan Bonde Nielsen, the court held the Giella conditions are sequential. Having failed on the prima facie case and irreparable loss limbs, the third limb did not fall for consideration.

p. 4

Legal principles established

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  • The conditions for the grant of a temporary injunction under Giella v Cassman Brown are to be applied sequentially: if the applicant fails on the prima facie case and irreparable loss limbs, the balance of convenience need not be considered
  • It is a threshold requirement that the applicant for an injunction demonstrate, prima facie, the nature and extent of the irreparable injury which cannot be adequately remedied by damages

Court orders

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  1. 1.The application dated 13th March 2014 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Tenancy agreement / Conditions of tenancy (Housing Estates Rent Card)Condition 13 (also referred to as Rule 13) - prohibition on assignment, underletting or parting with possession without written consent; Rule 18 - right of re-entry on breach

Cases cited (6)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao vs. First American Bank & 2 others
    (2003) KLR 125
  • George Kamande Wainaina vs. Bank of Baroda (K) Ltd & another
    Nairobi ELC No. 242 of 2014
  • Kenya Commercial Finance Company Ltd vs. Afraha Education Society
    (2001) 1 E.A. 86
  • Alex Wainaina T/A John Commercial Agencies vs. Janson Mwangi Wanjihia
    Nairobi CA No. 297 of 2014
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    (2014) eKLR; Nairobi CA No. 77 of 2012
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the tenancy and possession of land (suit premises); no specific constitutional or statutory provision invoked in the judgment.

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, "Lucy Nyawira Kangari v Nairobi City County (? 228 of 2015)  (Environment and Land) [2015] KEELC 256 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/256/eng@2015-07-10

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