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ELCDismissedMeru ELC (application dated 14.06.2016) – full suit number not stated in the judgment· [2017] KEELC 2110 (KLR)

Anita Mugambi v Meru County Investment & Development Corporation [2017] KEELC 2110 (KLR)

Environment and Land Court of Kenya
19 July 2017
1,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court dismissed a tenant's bid to stop her landlord from raising rent or ending her lease, ruling the lease itself allowed it.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (L. N. Mbugua, J) on the Plaintiff's Notice of Motion dated 14 June 2016 seeking temporary injunctions to restrain the Defendant/Respondent from terminating the lease dated 1 March 2011, evicting her, or increasing rent over Massionate E on Municipality/Block 11/119, Meru. The Applicant, a tenant at Kshs. 20,000 per month, contended that the lease had no termination clause, was to run to 2021, and that the Respondent had arbitrarily revised rent to Kshs. 168,960 and then issued a termination notice dated 7 June 2016. The Respondent, managing the premises for the Meru County Government, relied on the lease's general covenants allowing rent review every two years and alteration of the tenancy on one month's notice, a valuer's report supporting market rates, and cited sections 56(a) of the Land Act and 36(2) of the Land Registration Act. The court applied the Giella v Cassman Brown principles. It found no prima facie case because the lease plainly allowed alteration on one month's notice, which the Respondent gave; the court could not rewrite the contract. On irreparable harm, no demonstration was made that damages would be inadequate, following Vivo Energy v Maloba Petrol Station and Nguruman v Jan Bonde Nielsen. On the balance of convenience, the Applicant was not paying rent while enjoying injunctions, and the Respondent and public were incurring losses. Further, the interim injunctions granted on 11.07.16 had lapsed under Order 40 rule 6 CPR for want of determination within twelve months. The application was dismissed with costs to the Respondent and the earlier injunctive orders vacated.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

No prima facie case was established; the lease plainly contained a clause permitting alteration of the tenancy on one month's notice, which the Respondent issued

Reasoning

The court declined to interpret the lease at the interlocutory stage and relied on its plain terms. Clause 5 of the general covenants allowed either party to alter the tenancy by one month's notice or payment in lieu. The Respondent issued such a notice, which the Applicant did not comply with. That the new rent was high was not a factor since the contract was silent on the review amount.

p. 4
02

Whether the Applicant would suffer irreparable loss

Holding

The Applicant failed to demonstrate irreparable harm or that damages would not be an adequate remedy, and did not argue the Respondent could not pay damages

Reasoning

Relying on Vivo Energy v Maloba Petrol Station and the decision in Nguruman v Jan Bonde Nielsen, the court held that where damages are an adequate remedy and the respondent can pay, no interlocutory injunction should be granted. The Applicant advanced no argument that the Respondent could not pay damages.

p. 4
03

Balance of convenience

Holding

The balance of convenience did not tilt in the Applicant's favour, since she was not paying rent while enjoying injunction orders and the Respondent/public incurred losses

Reasoning

The court noted the Applicant was apparently not paying any rent and was the one enjoying the injunctive orders, while the Respondent and the public suffered losses, the premises belonging to the Respondent. On this ground too the application failed.

p. 5
04

Effect of Order 40 rule 6 CPR on the interim injunction granted on 11.07.16

Holding

The interim injunction granted on 11.07.16 had lapsed by operation of law since the suit was not determined within twelve months

Reasoning

Order 40 rule 6 of the Civil Procedure Rules provides that an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason. The orders granted on 11.07.16 (extended only to 27.4.17) had therefore lapsed, and the court vacated them.

p. 5

Legal principles established

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  • A court cannot rewrite a contract between parties; parties are bound by the terms of their contract unless there is coercion, fraud or undue influence
  • Where an interlocutory injunction is granted and the suit is not determined within twelve months, the injunction lapses unless the court orders otherwise for sufficient reason
  • If damages are an adequate remedy and the respondent is capable of paying, no interlocutory injunction should normally be granted however strong the claim appears

Court orders

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  1. 1.The application dated 14.06.2016 dismissed with costs to the Respondent
  2. 2.The injunctive orders granted earlier (on 11.07.16) vacated

Authorities

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Legislation

  • Land ActSection 56(a)
  • Land Registration ActSection 36(2)
  • Civil Procedure RulesOrder 40 rule 6
  • Constitution of Kenya (2010)Article 40 (invoked by the Applicant on right to affordable housing)

Cases cited (4)

  • Giella Versus Cassman Brown & Co Ltd
    [1973] EA 358
  • National Bank Versus Pipe Plastic Sarkilit (K) Ltd & Another
    Civil Appeal No. 95 of 1999
  • Vivo Energy Kenya Limited versus Maloba Petrol Station Limited & 3 others
    [2015] eKLR
  • Nguruman Limited -versus Jan Bonde Nielsen & 2 other
    Civil Appeal No. 77 of 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit premises (Municipality/Block 11/119, Meru); no specific statutory provision invoked for 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, "Anita Mugambi v Meru County Investment & Development Corporation [2017] KEELC 2110 (KLR)", Case Analysis (2017). Meru ELC (application dated 14.06.2016) – full suit number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2110/eng@2017-07-19

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