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ELCDismissedNotice of Motion dated 2nd April 2014· [2016] KEELC 1205 (KLR)

Paramount Electronics Limited v Simon Gatembu Mugaa & another [2016] KEELC 1205 (KLR)

High Court of Kenya
29 January 2016
MGMARY M. GITUMBI
1,738 words in judgment
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The bottom line

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Kenya's High Court refused to force a landlord to renew a lease mid-case, confirming that courts will only grant such orders in clear cases with special circumstances.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 2nd April 2014 seeking mandatory injunctions to compel the 1st Defendant to renew its lease over Shop No. 2, Solace House, L.R. No. 209/875 Tom Mboya Street, Nairobi; to terminate a lease the 1st Defendant had granted to the 2nd Defendant; and to compel the 2nd Defendant to pay the Plaintiff Kshs. 400,000/- monthly or cease running the restaurant business on the premises. The Plaintiff's case, deposed by its director Moez Sherali Haji, was that the Former Landlord (Lake Dry Cleaners Limited) leased it the premises in 2009, permitted a change of user to a restaurant run by the 2nd Defendant who paid the Plaintiff monthly, and that after the 1st Defendant acquired the building he demanded increased rent, purportedly forfeited the lease and leased the premises directly to the 2nd Defendant, dispossessing the Plaintiff. The 1st Defendant countered that the lease was unregistered, that he was protected by section 25 of the Land Registration Act 2012, that no landlord-tenant relationship existed between him and the Plaintiff, and that the lease had expired on 1st March 2014 by effluxion of time. The 2nd Defendant denied any contract with the Plaintiff, stating he held a direct lease from the 1st Defendant. Applying the Locabail International v Agro Export threshold, the court held that mandatory interlocutory injunctions require special circumstances and a high sense of assurance, that the prayers would determine the main suit without trial, and that the Plaintiff, not being in possession, had failed to meet the threshold. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff met the threshold for mandatory interlocutory injunctions

Holding

The Plaintiff failed to meet the threshold; no special circumstances were demonstrated and the case was not clear

Reasoning

The court applied the Locabail test, holding that mandatory injunctions on interlocutory applications require special circumstances and clear cases. Granting the prayers sought would effectively determine the main issues in the suit without trial, and the Plaintiff was not in possession of the suit property, so the relief would alter the position on the ground prematurely.

p. 3

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases
  • Before granting a mandatory interlocutory injunction the court must feel a high sense of assurance that at trial the injunction would have been rightly granted - a higher standard than for a prohibitory injunction

Court orders

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  1. 1.The Application (Notice of Motion dated 2nd April 2014) is dismissed
  2. 2.Costs of the Application awarded to the Defendants

Authorities

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Legislation

  • Land Registration Actsection 25

Cases cited (1)

  • Locabail International versus Agro Export
    (1986) 1 ALLER 901
Jurisdiction invoked
Original civil jurisdiction over an interlocutory application in a land/tenancy dispute (Land Registration Act 2012 cited)

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, "Paramount Electronics Limited v Simon Gatembu Mugaa & another [2016] KEELC 1205 (KLR)", Case Analysis (2016). Notice of Motion dated 2nd April 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1205/eng@2016-01-29

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