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ELCPartially AllowedCivil Suit No 150 of 2017· [2017] KEELC 213 (KLR)

Harold Tuva v David Charo Katana & another [2017] KEELC 213 (KLR)

Environment and Land Court
22 November 2017
LKL. Komingoi
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa protected a landlord from tenant encroachment, holding that unauthorised major improvements breach a lease and justify an injunction.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered proprietor of Plot Number 12787/1/MN (Original No. 1499/2/1/MN), moved the court by Notice of Motion dated 17th April, 2017 seeking a temporary injunction to restrain the Defendants/Respondents from encroaching on, trespassing on, constructing on, fencing or obstructing access to the suit property pending the hearing and determination of the suit. The Plaintiff had leased part of the parcel to the 1st Defendant under an agreement dated 1st August, 2013 at Kshs.10,000 per month, and issued a six months' notice terminating the tenancy on 1st June, 2016. The 1st Defendant, who had sublet to the 2nd Defendant and constructed premises known as 'Queen Bar & Lounge', opposed the application, contending that the agreement did not prohibit subletting, that the tenancy was in perpetuity, and that he had made improvements worth Kshs.4,600,000 for which he had not been compensated. The court framed two issues: whether the conditions for a temporary injunction were met and who should bear costs. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the agreement silent on subletting, that clause 4 permitted termination on notice, and that the 1st Defendant breached clause 7 by making major improvements without the landlord's written consent. A prima facie case and irreparable injury were established. The temporary injunction issued as prayed, with costs of the application to abide the outcome of the main suit. Pretrial directions were set for 1st March, 2018.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

Yes - the Applicant is the registered proprietor and was within his right to issue a notice of termination of the tenancy under clause 4 of the agreement

Reasoning

The court examined the tenancy agreement dated 1st August, 2013 and found it silent on sub-letting. Clause 4 gave either party the right to terminate on three months' notice or rent in lieu. The Plaintiff gave a six months' notice which the 1st Defendant received. The 1st Defendant admitted making improvements of Kshs.4,600,000 without written consent as required under clause 7 for major improvements, breaching a term of the tenancy. The Plaintiff therefore established a prima facie case.

p. 3
02

Whether the Applicant would suffer irreparable injury if the injunction is not granted

Holding

Yes - the Applicant runs the risk of the suit premises being altered completely to his detriment

Reasoning

Having found a prima facie case, the court applied the second Giella principle. The Plaintiff demonstrated that if the injunction were withheld, the suit premises risked being completely altered to his detriment, an injury not adequately compensable in damages. The Defendants' counter-argument that their businesses would be disrupted did not displace this finding.

p. 3

Legal principles established

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  • A prima facie case in a civil application is a case which, on the material presented, shows a right apparently infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents by themselves, employees, agents, servants and/or otherwise from encroaching, trespassing, constructing, fencing, parking motor vehicles, obstructing the Applicant's right of access and/or access into and/or out of all that property known as Plot Number 12787/1/MN (Original No. 1499/2/1/MN) pending hearing and final determination of the suit
  2. 2.Costs of the application to abide the outcome of the main suit
  3. 3.Pretrial directions on 1/3/2018

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1, 2 & 3
  • Civil Procedure Act Chapter 21 Laws of KenyaSections 1A, 1B, 3A & 63(e)

Cases cited (3)

  • Joseph Mbugua Gichanga -versus- Cooperative Bank of Kenya Limited
    (2005) eKLR
  • Giella -versus- Cassman Brown And Company Limited
    (1973) EA 358
  • Mrao Limited -versus- First American Bank Limited And 2 Others
    (2013) eKLR
Jurisdiction invoked
Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act Chapter 21 Laws of Kenya

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, "Harold Tuva v David Charo Katana & another [2017] KEELC 213 (KLR)", Case Analysis (2017). Civil Suit No 150 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/213/eng@2017-11-22

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