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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4637 (KLR)

Co-Operative Bank of Kenya Limited v Government of Nairobi City County [2019] KEELC 4637 (KLR)

Environment and Land Court (court name not expressly stated in the judgment text)
7 February 2019
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling determines a Notice of Motion dated 12th September 2018 by Cooperative Bank of Kenya Limited, a tenant of Nairobi City County Government on LR No. 209/5577 (its City Hall Way Branch) since 2003, seeking a temporary injunction restraining eviction pending the hearing of its suit. The defendant filed a preliminary objection contending that under Order 29 rule 2(2)(d) of the Civil Procedure Rules no injunction may issue against government, and that as one of the 47 county governments established under Article 6 of the Constitution it enjoys the same privileges as the National Government. It further argued the plaintiff had no arguable case, citing absence of minuted resolutions authorising the lease. The court first held that the County Government Act 2012 contains no protection against injunctions and that the Section 16 Government Proceedings Act shield, read with Order 29 rule 2(2)(d), applies only to the National Government, following Lawrence Ogaro Onyiego and James Muigai Thungu; the preliminary objection was dismissed with no orders as to costs. Applying Giella vs Cassman Brown and Mrao Ltd, the court found the plaintiff a tenant whose lease was to be renewed, with nothing in the correspondence indicating non-renewal and the defendant continuing to accept rent; the defendant's claim of unauthorised correspondence was mere averment. Irreparable loss was demonstrated, and the balance of convenience favoured the plaintiff. A temporary injunction was issued restraining eviction pending determination of the suit, with the costs of the application abiding the outcome of the main suit.

Key legal issues

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01

Whether injunctive orders may issue against a county government under Order 29 Rule 2(2)(d) of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 2
02

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

Holding

The plaintiff, a tenant since 2003 whose lease was to be renewed, established a prima facie case with a probability of success at trial.

Reasoning

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.

p. 3
03

Whether the plaintiff would suffer irreparable loss not compensable by damages, and where the balance of convenience lies

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The preliminary objection dated 21st September 2018 dismissed with no orders as to costs
  3. 3.The costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A, 63
  • Civil Procedure Rules 2010Order 19 rule 2(2)(d); Order 29 rule 2(2)(d)
  • County Government ActNot specified
  • Government Proceedings Act, Cap 40Section 16 (including Section 16(2))
  • Constitution of KenyaArticle 6

Cases cited (12)

  • Lawrence Ogaro Onyiego & Another vs Samuel Minika & Another
    [2017] eKLR
  • Nyandoche Ibere Co-operative Society vs County Government of Kisii & Another
    [2017] eKLR
  • James Muigai Thungu vs County Government of Trans-Nzoia & 2 Others
    [2015] eKLR (also cited as [2017])
  • DL Koisagat Tea Estate Ltd vs Eritrea Othodox Tewhdo Church Ltd
    [2015] eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    [2004] eKLR
  • Said Majid Said vs James Titus Kisia
    [2015] eKLR
  • Republic vs Attorney General & Another Exparte Stephen Wanyee Roki; Club Limited vs the Governor, Kajiado County & Another
    HC Misc Application No 442 of 2011
  • Risper Auma Okoth vs Matoba Petrol Station & 3 Others
    [2015] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Njenga vs Njenga
    (1991) KLR 401
  • Kenleb Cons Ltd V New Gatitu Service Station Ltd & Another
    1990 KLR 557
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

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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, "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.