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ELCDismissedNotice of Motion dated 18th December 2018 (Malindi ELC)· [2019] KEELC 149 (KLR)

Jane Wanjiru Nderitu Alias Janet Ndiritu & another v Shima Properties Limited & another [2019] KEELC 149 (KLR)

Environment and Land Court
5 December 2019
JOJ.O. Olola
1,552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Malindi court refused to stop a landlord from retaking her property because the tenants admitted paying nothing for three years.

What this practically means

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Executive summary

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The Plaintiffs, Jane Wanjiru Nderitu and Les Carmes Ltd, moved the court by Notice of Motion dated 18th December 2018 seeking a temporary injunction to restrain the 1st Defendant, Shima Properties Ltd, and the 2nd Defendant, Mugema Auctioneers, from alienating, attaching, selling or dealing with items and equipment at Fabian House, Plot No. 664 Malindi, and from demanding Kshs 551,000, pending the hearing of the suit. The Plaintiffs asserted that they had entered a five-year Management Contract with the 1st Defendant on 16th February 2016 to operate a bed and breakfast business, and that the 1st Defendant had unlawfully instructed auctioneers to levy distress for alleged rental arrears of Kshs 450,000 despite the absence of any tenancy agreement. The 1st Defendant admitted the contract but contended that the 2nd Plaintiff had never made any payments, that it terminated the contract on 27th September 2017, and that the Plaintiffs refused to vacate. Applying the Nguruman principles, the court held that the Plaintiffs had not demonstrated a prima facie case with a probability of success, as no right of theirs was shown to be about to be infringed and no irreparable harm was established. The balance of convenience favoured the 1st Defendant, given the 1st Plaintiff's admission that no payments had been made over three years of residence and operation. The application was dismissed with costs to the 1st Defendant on 5th December 2019.

Key legal issues

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01

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

Holding

No prima facie case was established; the Court saw no right of the Plaintiffs about to be infringed

Reasoning

The Plaintiffs relied on a Management Contract over the 1st Defendant's premises. While the contract was admitted, the 1st Defendant asserted termination for non-payment. The 1st Plaintiff admitted no payments had been made in three years, and the contract provided that management would revert to the 1st Defendant upon termination. The Court found no clear and unmistaken right requiring protection.

p. 3
02

Whether irreparable harm would be suffered and where the balance of convenience lies

Holding

No irreparable harm was demonstrated; the balance of convenience favoured the 1st Defendant

Reasoning

The Plaintiffs did not show they had brought items or resources into the property that would be wasted or damaged irreparably. The 1st Plaintiff admitted residing in and operating the business on the 1st Defendant's property without making any payment for three years, so the balance of convenience tilted towards the owner of the premises who had not earned anything from the deal.

p. 3

Legal principles established

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  • The grant of a temporary injunction is discretionary and requires a prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, the balance of convenience
  • The burden of proving a prima facie case lies on the Applicant, who must show a clear and unmistaken right directly threatened

Court orders

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  1. 1.The Notice of Motion dated 18th December 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant
Jurisdiction invoked
Inherent jurisdiction of the court to grant temporary injunctions pending hearing of the suit

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, "Jane Wanjiru Nderitu Alias Janet Ndiritu & another v Shima Properties Limited & another [2019] KEELC 149 (KLR)", Case Analysis (2019). Notice of Motion dated 18th December 2018 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/149/eng@2019-12-05

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