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ELCPartially AllowedNot stated in the excerpt (ELC at Nairobi)· [2015] KEELC 663 (KLR)

Samson Muliro Aketch t/a Kenya Aeronautical College v Kenya Airports Authority [2015] KEELC 663 (KLR)

Environment and Land Court
26 January 2015
3,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nairobi (P. Nyamweya J) on a Notice of Motion dated 17th February 2014 by the Plaintiff, a tenant of the Defendant (Kenya Airports Authority) under a Build Operate and Transfer arrangement on L.R No. 209/13080, Wilson Airport, Nairobi, where it had built Kenya Aeronautical College. The Plaintiff sought an injunction restraining eviction, termination of the lease or interference with occupation, specific performance of a letter of offer dated 24th January 2007, a declaration of entitlement to a lease, and police assistance, contending that the Defendant refused to provide a registered lease despite his payment of rent and investment of Kshs 126 million. The Defendant opposed, asserting that the Plaintiff breached clause 17 of the letter of offer by constructing without approved building plans and that the building had structural defects. Applying Giella v Cassman Brown and the mandatory injunction principles in Kenya Breweries v Washington Okeyo, the court found a prima facie case (a contract existed) and irreparable harm (Kshs 126 million investment), but held it was not a clear case for specific performance and declaration given unresolved approval and structural integrity issues. The court granted a conditional six-month injunction requiring payment of rent and rectification of defects, lapsing on default, with costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

Yes - the Defendant did not deny making the offer which the Plaintiff accepted, showing a contract exists between the parties

Reasoning

The court observed that the Plaintiff relied on a letter of offer dated 24th January 2007 which he accepted on 30th January 2007, and produced evidence of the offer, acceptance, rent payments and a valuation report. The Defendant did not deny the offer and acceptance. Accordingly the Plaintiff demonstrated a contract and hence a prima facie case with a probability of success.

p. 4
02

Whether the Plaintiff would suffer irreparable damage

Holding

Yes - given the investment of Kshs 126 million evidenced by the valuation report, damages would not adequately compensate him if evicted

Reasoning

The court relied on the valuation report dated 13th November 2012 valuing the buildings at Kshs 126,000,000/= and on the fact that the lease term of 10 years from 1st March 2007 had not expired, concluding that eviction would cause irreparable harm not compensable in damages.

p. 4
03

Whether specific performance and declaration should issue at the interlocutory stage

Holding

No - outstanding issues on approvals and structural integrity meant this was not a clear case for such orders

Reasoning

The Defendant raised concerns, set out in letters dated 23rd April 2009 and 19th October 2009, about the Plaintiff commencing construction without approved plans in breach of clause 17 of the letter of offer, and about structural defects. The Plaintiff claimed compliance but provided no evidence of the necessary approvals. Given the unresolved approvals and safety concerns, mandatory orders of specific performance were refused, and any injunction was made conditional on rectification of defects.

p. 5
04

Whether the temporary injunction should be conditional

Holding

Yes - the injunction was granted subject to payment of rent and undertaking of agreed structural and architectural modifications, and lapses on default

Reasoning

Because the building might present risks, the court conditioned the six-month injunction on the Plaintiff continuing to pay rent under clauses 5 and 6 of the letter of offer and on initiating and completing agreed modifications within specified timelines, with automatic lapsing upon default.

p. 5

Legal principles established

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  • Requirements for a temporary injunction: prima facie case, irreparable loss not compensable by damages, failing which the balance of convenience is considered
  • A mandatory injunction requires special circumstances over and above a prima facie case, and will only issue in clear cases
  • Definition of a prima facie case in civil applications as stated in Mrao Ltd v First American Bank of Kenya Ltd

Court orders

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  1. 1.The Defendant be restrained for six months from evicting the Plaintiff, terminating the offer of lease, disposing of, alienating, reclaiming and/or taking over the premises on L.R No. 209/13080 Wilson Airport, Nairobi, or interfering with the Plaintiff's peaceful occupation, pending the hearing of the suit or until further orders, subject to conditions
  2. 2.Condition (a): the Plaintiff shall pay rent due according to clauses 5 and 6 of the letter of offer dated 24th January 2007 as accepted on 30th January 2007
  3. 3.Condition (b): within 30 days the Plaintiff shall initiate discussions with the Defendant's relevant officer on architectural, structural and other modifications, and within six months undertake the agreed modifications
  4. 4.Upon default of any condition in Order 1 the injunction shall automatically lapse
  5. 5.Parties shall be at liberty to apply
  6. 6.Costs of the Notice of Motion dated 17th February 2014 shall be in the cause

Authorities

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Legislation

  • Kenya Airports Authority Actsection 152
  • Kenya Airports Authority Actsection 12(3)(b)
  • Local Government (Adoptive By-Laws Buildings) Order 1968
  • Local Government (Adoptive By-Laws) Grade II Building) Order 1968
  • Civil Procedure Act and Rules

Cases cited (6)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Kenya Breweries Ltd and another v Washington Okeyo
    (2002) 1 E.A. 109
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Bachelors Bakery Ltd vs Westlands Securities Ltd
    Civil Appeal No. 2 of 1978
  • Waterfronts Outlets Limited vs Njeka Ochunyi
    NRB ELC 270 of 2012
  • Republic vs Municipal Council of Nakuru & Another
    (2009) eKLR
Jurisdiction invoked
First-instance jurisdiction of the Environment and Land Court over the suit relating to L.R No. 209/13080 Wilson Airport, Nairobi

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, "Samson Muliro Aketch t/a Kenya Aeronautical College v Kenya Airports Authority [2015] KEELC 663 (KLR)", Case Analysis (2015). Not stated in the excerpt (ELC at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/663/eng@2015-01-26

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