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ELCPartially AllowedELC 297 of 2015 (and consolidated ELC 298 of 2015)· [2016] KEELC 1022 (KLR)

Martin Mwangi Gichuki t/a Ivory Mount Senior School v Gladinga (K) Limited (Environment & Land Case 299 of 2015) [2016] KEELC 1022 (KLR)

Environment and Land Court
13 April 2016
AOA. Omollo
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a landlord from evicting a school until trial, because the lease dispute raised genuine questions and eviction would disrupt students' education.

What this practically means

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Executive summary

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The plaintiff, Martin Gichuki, moved the Environment and Land Court at Mombasa by Notice of Motion dated 11th November 2015 seeking a temporary injunction restraining the defendant, Gladinga Kenya Limited, from evicting him and his students from Plot/L.R No. 3113 in Taita Taveta County, Mwatate, or interfering with the normal learning at Ivory Mount Senior School, pending hearing of the application and the suit. The plaintiff relied on a lease agreement signed on 3rd June 2014 between himself and a director of the defendant, under which he had occupied the premises and paid rent since June 2014. The defendant opposed, contending the lease was null and void because it was never signed or sealed by the company, was not authorised by a resolution of its directors, was instead stamped by Taita Academy Primary which owned neither the land nor the infrastructure, and that the plaintiff and his teachers lacked statutory registration under the Teachers Service Commission Act and the Basic Education Act. The court held that the defendant had not alleged rent arrears or breach of the lease's special termination conditions; the questions of the lease's validity and the alleged statutory breaches required oral and documentary evidence at a full trial. Finding a prima facie case with probability of success, and that the balance of convenience favoured the plaintiff who had run a high school on the premises since June 2014, the court allowed the application in terms of prayer 3, with costs to abide the outcome of the main suit. The parties having agreed, the application dated 11th November 2015 in ELC 298 of 2015 was also granted in terms of prayers 3 and 4. Irreparable loss was not addressed.

Key legal issues

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01

Prima facie case on a lease whose validity is disputed

Holding

The disputed execution and statutory compliance issues created triable questions, establishing a prima facie case

Reasoning

The lease bears the signature of a director of the defendant though stamped with Taita Academy Primary's rubber stamp. The defendant raised lack of company resolution, improper sealing and statutory breaches, but pleaded no rent arrears and no breach of the lease's automatic discontinuation conditions. Whether the lease is valid, and whether alleged breaches of the TSC Act and Basic Education Act could justify termination, are matters requiring oral and documentary evidence at trial.

p. 2
02

Balance of convenience

Holding

It tilts in favour of the plaintiff who has occupied and run a high school on the premises since June 2014

Reasoning

The plaintiff has been in uninterrupted occupation operating Ivory Mount Senior School since June 2014; evicting him and his students before trial would disrupt learning. The defendant did not allege rent arrears or breach of the special conditions in the lease, only illegality in execution and regulatory non-compliance, matters to be determined at trial.

p. 3
03

Irreparable loss

Holding

Not determined as neither party addressed the court on it

Reasoning

Both parties failed to address the court on the principle of irreparable loss, so the court declined to delve into it, resting the decision on prima facie case and balance of convenience.

p. 3

Legal principles established

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  • The test for a temporary injunction requires a prima facie case with probability of success, irreparable loss, and balance of convenience
  • Where an applicant is in occupation and operating a school, the balance of convenience favours maintaining the status quo

Court orders

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  1. 1.Temporary injunction restraining the defendant, its agents, servants or any other person acting under its authority from evicting the plaintiff and his students from Plot/L.R No. 3113 in Taita Taveta County, Mwatate, or interfering with the normal learning at the school built thereon, pending hearing and determination of the application and suit (prayer 3)
  2. 2.The application dated 11th November 2015 in ELC 298 of 2015 is likewise granted in terms of prayer 3 & 4 of that motion
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Law of Contract Act
  • Teachers Service Commission Act No. 20 of 2012section 23(2)
  • Basic Education Act No. 14 of 2013section 50(2)(b)
  • Companies Act
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit premises Plot/L.R No. 3113 in Taita Taveta County

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, "Martin Mwangi Gichuki t/a Ivory Mount Senior School v Gladinga (K) Limited (Environment & Land Case 299 of 2015) [2016] KEELC 1022 (KLR)", Case Analysis (2016). ELC 297 of 2015 (and consolidated ELC 298 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1022/eng@2016-04-13

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