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ELCDismissedNot stated in the judgment· [2016] KEELC 195 (KLR)

Vincent A. Chokaa & another v Chengdu Guangling Kenya Co.Ltd & 3 others [2016] KEELC 195 (KLR)

Not stated in the judgment
7 October 2016
LGL. GACHERU
2,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a residents' association managing a Lavington apartment block because the flat owners proved no specific rights, no wrongdoing, and no irreparable loss.

What this practically means

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Executive summary

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The Plaintiffs, owners of Flats M21 and M24 on LR No. 330/432, Lavington, moved the court by Notice of Motion dated 5th March 2015 seeking interim injunctions restraining the Defendants from interfering with their use and occupation of their flats and parking bays M7 and M8, from registering Sunning Hills Management Company Limited, and from withdrawing moneys from the 'Odhiambo & Others' bank account. They contended the Defendants were strangers managing the property without authority, collecting service charge opaquely and threatening lockouts and disconnection of services. The 1st Defendant (developer) replied that it had transferred all interests, had duly incorporated a management company in 2010, and could not interfere. The 2nd Defendant (residents' association) explained the association arose from the developer's and management company's failure to provide services, that parking slots were marked in 2014 to resolve congestion, and that Plaintiffs were allocated spaces near their units. The sole issue was whether a temporary injunction should issue on the Giella v Cassman Brown principles. Prayer 3 collapsed on the Plaintiffs' own concession. The court found no evidence of allocation of slots M7 and M8 to the Plaintiffs, noted the management company had never received a hand-over and no flat owner was a shareholder, held the residents' interim arrangements should not be disturbed absent cogent evidence of interference or misapplication of funds, and found no irreparable loss demonstrated. The balance of convenience favoured the 2nd and 3rd Defendants. The application was dismissed entirely with costs in the cause, delivered on 7th October 2016 by L. Gacheru J.

Key legal issues

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01

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

Holding

No prima facie case was established; the lease entitled Plaintiffs to parking generally but not to slots M7 and M8 specifically, and the management arrangements were a stop-gap necessitated by the developer's failure to hand over

Reasoning

The court perused the lease, which demised Flat M24 and granted rights over common areas and parking areas generally, but found no evidence of specific allocation of slots M7 and M8. The Management Company existed on paper but the developer had never handed over, none of the flat owners were shareholders, and the residents' association filled the resulting vacuum. Absent cogent evidence of interference or misapplication of funds, no prima facie case was shown.

p. 4
02

Whether irreparable injury and balance of convenience favoured granting the injunction

Holding

No irreparable loss was shown, and the balance of convenience tilted towards the 2nd and 3rd Defendants who were managing the property in the interim

Reasoning

The Plaintiffs did not demonstrate irreparable loss if the orders were withheld. The court noted that the general welfare of all 168 units' residents depended on the continued management arrangements, so the balance of convenience favoured maintaining the status quo under the 2nd and 3rd Defendants pending resolution of the underlying dispute.

p. 5

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of a temporary injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience where the court is in doubt
  • Where a management company has failed to take over management of a sectional development, the court will not interfere with flat owners' interim arrangements absent cogent evidence of interference or unaccountability
  • Justice is administered without undue regard to technicalities; the court may treat a spent interlocutory prayer as one pending determination of the suit

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 5th March 2015 is dismissed entirely
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Sectional Properties ActSection 20

Cases cited (1)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] E.A 358
Jurisdiction invoked
Not stated in the judgment; determined as an interlocutory application for temporary injunction under the court's inherent civil jurisdiction

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, "Vincent A. Chokaa & another v Chengdu Guangling Kenya Co.Ltd & 3 others [2016] KEELC 195 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/195/eng@2016-10-07

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