Mugo & Gatungo Limited v Abdulrahman Farah Osman [2017] KEELC 1336 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the initial termination notice terminated the lease and created a new controlled tenancy under Cap 301
Based on the conduct of the parties, the initial notice did not and could not have terminated the lease; the applicant itself founded the former suit on that lease.
The court declined to make a definitive determination at the interlocutory stage but held that the applicant's conduct negated its claim that the lease had been terminated. The applicant had obtained orders in Nyeri ELC No. 100 of 2016 restraining alteration of the lease and its pleadings there were founded on that lease, so it could not now contend that the lease had ended and that a new controlled tenancy under Cap 301 had arisen. The court characterised the changed position as dishonest.
Whether the second termination notice issued under clause 7 of the lease was effective
Clause 7 could not be invoked merely to bring the lease to an end without proper reasons or breach by the tenant; the second notice alleged no breach.
The court held that the termination clause must be read alongside the other rights and obligations in the lease, not in isolation. It would defeat the purpose of termination clauses if a party could exit voluntarily without breach or difficulty meeting the lease terms. Unlike the first notice, the second notice did not allege any breach of the tenant's obligations, so the respondent failed to justify invoking clause 7, and the applicant established a prima facie case with probability of success.
Whether the applicant met the conditions for an interlocutory injunction
Having established a prima facie case with probability of success, the other conditions need not be considered and the application was allowed as prayed.
Applying the Giella v Cassman Brown test as explained in Mrao Ltd and Risper Auma Okoth, the court found the applicant had demonstrated a prima facie case. Relying on the sequential nature of the Giella conditions, the court held it unnecessary to consider irreparable injury or balance of convenience once the first condition was satisfied.
Legal principles established
#- A termination/exit clause in a lease cannot be invoked merely to escape lease obligations absent breach of the lease terms or genuine difficulty in meeting them; it must be supported by proper reasons.
- The conditions for granting an interlocutory injunction must be considered sequentially; the second and third conditions need not be considered where the first (prima facie case) is established.
Court orders
#- 1.The notice of motion dated 15th June 2017 is allowed as prayed - the defendant, his servants and/or agents and anyone acting under his instructions are restrained from evicting the applicant or interfering with its quiet possession of plot No. Nyeri Municipality Block II/373 pending the hearing and determination of the application and the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning plot No. Nyeri Municipality Block II/373; no specific constitutional or statutory provision invoked as the source of jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo & Gatungo Limited v Abdulrahman Farah Osman [2017] KEELC 1336 (KLR)", Case Analysis (2017). Not stated in the judgment (Nyeri ELC suit; related former suit Nyeri ELC No. 100 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1336/eng@2017-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.