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ELCPartially AllowedNot stated in judgment text· [2021] KEELC 144 (KLR)

Esther Adhiambo Ongong & another v Paragon Electronics Limited [2021] KEELC 144 (KLR)

Environment and Land Court

16 December 2021

SOS. Okong'o

4,729 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Nairobi court froze all changes to a disputed apartment and gave the other side one supervised chance to inspect it.

What this practically means

Executive summary

The Defendant brought two applications in a pending suit in which the Plaintiffs seek specific performance of an agreement for lease/lease of Apartment No. 5, Block A-1 (L.R No. 330/355), Nairobi, dated 28th February 2012, or in the alternative a refund of Kshs. 14,670,000 with interest; the Defendant counterclaimed for cancellation of the lease and caveat and payment of the outstanding purchase price of Kshs. 1,630,000, alleging it terminated the agreement. The application of 16th November 2020 sought an injunction restraining the Plaintiffs from altering the suit property, an in situ visit by the court, and alternatively access for the Defendant to inspect and record the property. The Plaintiffs opposed, arguing res sub-judice, that the court lacks expertise for a site visit, and that they took possession of an incomplete unit and spent Kshs. 527,218 making it habitable. The court dismissed the preliminary objections on the Plaintiffs' replying affidavit (late filing and commissioning) and on sub judice, holding that the application arose from subsequent developments. Applying the authority that a locus in quo visit is exceptional, the court declined the site visit as the evidence sought was technical and beyond judicial expertise. However, it granted the alternative prayer for limited access, reasoning that fairness required a level playing field given the Plaintiffs would rely at trial on works they claim to have done. Satisfied that the prevailing status quo should be maintained where facts are seriously conflicted, the court issued an injunction restraining alterations to the suit property, granted the Defendant one supervised access within 14 days with photographs permitted, allowed police presence if necessary, and ordered costs in the cause.

Key legal issues

Whether the court should conduct a site visit (locus in quo) of the suit property

Holding

The court declined the site visit because the evidence sought was technical and beyond judicial expertise; no special circumstances were shown.

Reasoning

Relying on the cited authority, the court held that a locus in quo visit is exceptional, meant to help the court understand evidence rather than gather missing evidence. The Defendant sought to extract technical information about alterations which the court lacked expertise to assess; a case for a site visit was therefore not made out.

p. 5

Whether the Defendant should be granted access to the suit property for inspection

Holding

The court granted limited access once within 14 days, with photographs/videos permitted and police assistance if needed, as a matter of fairness to level the playing field.

Reasoning

The Plaintiffs admittedly took possession without permission while the ownership dispute was pending and claimed to have spent over Kshs. 500,000 on works, which they would rely on at trial. Fairness demanded that the Defendant similarly be able to inspect and engage an expert on the alleged alterations.

p. 5

Whether the Plaintiffs should be restrained from altering the suit property

Holding

An injunction was granted preserving the status quo pending trial, since ownership and entitlement to possession were in dispute.

Reasoning

Following Ougo v Otieno, where facts are seriously conflicted the trial court should maintain the status quo until trial. The suit property was in dispute, the Plaintiffs' possession was unauthorised and pending suit, and preservation was necessary; the injunction restraining alterations was issued.

p. 5

Whether the Defendant's application was res sub-judice and whether the Plaintiffs' replying affidavit was defective

Holding

Neither preliminary objection succeeded: the application arose from post-filing developments and the affidavit objections failed.

Reasoning

The court found the present application was necessitated by developments after the 25th September 2020 application and the orders sought were not all similar, defeating the sub judice claim. The late-filing objection failed for want of an affidavit of service, and the commissioning objection was satisfactorily answered by the commissioner's evidence that he left the Plaintiffs' firm in March 2017.

p. 4

Legal principles established

A visit to the locus in quo is the exception rather than the rule in civil proceedings; special circumstances must be shown and its purpose is to help the court understand the evidence, not to collect missing evidence
Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at trial
Where a party alleging late filing of a response does not file an affidavit of service, the objection cannot be sustained

Court orders

1.An injunction restraining the Plaintiffs from altering, changing, or otherwise interfering with the structures and fixtures of Apartment No. 5 Block A-1 (A1-5) (L.R No. 330/355), Nairobi, pending hearing and determination of the suit
2.The Plaintiffs to give the Defendant or its representatives or agents access to the suit property once within fourteen (14) days to ascertain whether there are any alterations carried out or ongoing, and the Defendant may take pictures and/or videos
3.The parties' advocates to discuss and agree on the date for such visit within the prescribed period
4.The Officer in Charge of Kilimani Police Station or officers under his/her command to be present to maintain peace and order during the Defendant's access upon being served with the order
5.Costs of the application to be in the cause

Authorities

Legislation

Civil Procedure Actsection 6
Civil Procedure Rulessection 6 (as cited by the Plaintiffs)

Cases cited (2)

Republic v Nairobi City County Government & 6 others Ex Parte Mike Sonko Mbuvi
[2015] eKLR
Ougo and Another v Otieno
[1997] KLR 364

Jurisdiction invoked: Original civil jurisdiction over a land dispute (suit and counterclaim) before the Environment and Land Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Esther Adhiambo Ongong & another v Paragon Electronics Limited [2021] KEELC 144 (KLR)", Case Analysis (2021). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/144/eng@2021-12-16

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