Britam Towers LLP v Aloniab General Trading Limited [2021] KEELC 1352 (KLR)
The bottom line
#A Nairobi court locked a tenant out of Britam Tower over unpaid rent, confirming that written admission of rent default can win an injunction before trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
Yes - the defendant admitted default in rent and service charge in writing, and the Head of Terms permitted re-entry upon default for more than 14 days.
The court applied the Mrao definition of a prima facie case and the Nguruman caution against holding a mini-trial. On the affidavit evidence, the defendant admitted default and the contractual right of re-entry under Clause 23 had been exercised on 8/07/2021. The court thus found an apparently infringed right without delving into the merits, which are reserved for the substantive suit.
Whether the plaintiff would suffer irreparable injury not compensable in damages
Yes - the court found the substratum of the case would be destroyed and the loss could not be quantified in damages.
The plaintiff showed the defendant was indebted in the sum of Kshs. 19,736,166 and that allowing the defendant back onto the premises would occasion further damage and waste recoverable only through lengthy and expensive court process. The court held that failing to grant the injunction would destroy the substratum of the suit, satisfying the second Giella limb.
Where the balance of convenience lies
It would tilt in favour of the plaintiff to preserve the status quo pending hearing and determination of the suit.
Applying the sequential Giella test, the court noted that even if it had doubt on the second limb, the balance of convenience would favour the plaintiff in order to safeguard the current status quo of the subject premises. This was framed as a subsidiary consideration given the findings on the first two limbs.
Legal principles established
#- The three Giella conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially; a prima facie case does not permit leap-frogging to injunction.
- A prima facie case in civil applications is one showing an apparently infringed right calling for an explanation or rebuttal from the opposite party.
- The court should maintain the status quo pending trial where disruption would occasion a greater injustice.
Court orders
#- 1.The Notice of Motion dated 9th July 2021 allowed in terms of prayer 2 (interlocutory injunction restraining the Defendant from entering, using, occupying or trespassing on the Ground Floor premises at Britam Tower pending hearing and determination of the suit)
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya 2010, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Britam Towers LLP v Aloniab General Trading Limited [2021] KEELC 1352 (KLR)", Case Analysis (2021). Notice of Motion dated 9th July 2021 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1352/eng@2021-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.