Co-Operative Bank of Kenya Limited v Government of Nairobi City County [2019] KEELC 4637 (KLR)
The bottom line
#A Nairobi court confirmed that Kenyan county governments can be stopped by injunctions, and blocked Nairobi County from evicting Cooperative Bank from its City Hall Way branch.
What this practically means
#Executive summary
#Key legal issues
#Whether injunctive orders may issue against a county government under Order 29 Rule 2(2)(d) of the Civil Procedure Rules
County governments are not shielded from injunctions; the County Government Act 2012 contains no such protection and the Government Proceedings Act protection applies only to the National Government.
The court agreed with the plaintiff's submission that the County Government Act 2012, the statute giving effect to devolved government, contains no provision protecting county governments from injunctions. It followed the decisions of Mutungi J and Obaga J holding that Section 16(2) of the Government Proceedings Act does not apply to county governments, concluding that the court is not prohibited from issuing injunctive orders against the defendant. The preliminary objection was dismissed.
Whether the plaintiff established a prima facie case with a probability of success
The plaintiff, a tenant since 2003 whose lease was to be renewed, established a prima facie case with a probability of success at trial.
The court found it not in doubt that the plaintiff had been a tenant since 2003, that a lease existed and was to be renewed before the termination notice issued. Correspondences showed nothing indicating non-renewal, and the defendant continued accepting rent. The defendant's assertion that it had taken action against staff who authored the lease correspondence was dismissed as mere averments lacking proof that the authors lacked authority.
Whether the plaintiff would suffer irreparable loss not compensable by damages, and where the balance of convenience lies
Damages would not adequately compensate the plaintiff, a bank that invested heavily in refurbishing the premises, and the balance of convenience favours it remaining in occupation.
Relying on Said Majid Said vs James Titus Kisia, the court held that losses a bank would suffer if evicted, including disruption of operations and customer inconvenience, are not readily quantifiable in damages. The balance of convenience favoured the plaintiff continuing to operate its City Hall Way branch pending the hearing and determination of the suit.
Legal principles established
#- The protection against injunctions under Section 16 of the Government Proceedings Act and Order 29 Rule 2(2)(d) of the Civil Procedure Rules applies to the National Government only and does not extend to county governments.
Court orders
#- 1.A temporary injunction restraining the defendant/respondent, its agents, servants, employees and/or persons acting under its instructions from evicting the plaintiff/applicant from the office premises on LR NO. 209/5577 (Cooperative Bank of Kenya Limited City Hall Way Branch) pending the hearing and determination of the suit
- 2.The preliminary objection dated 21st September 2018 dismissed with no orders as to costs
- 3.The costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Original civil jurisdiction; application brought under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Co-Operative Bank of Kenya Limited v Government of Nairobi City County [2019] KEELC 4637 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4637/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.