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ELCDismissedNotice of Motion dated 31st March 2021 arising from an appeal against the Ruling of Hon. E. Wanjala, Principal Magistrate, in Chief Magistrate's Court Civil Suit No. E5145 of 2020· [2021] KEELC 1789 (KLR)

Chogi’s Garage Limited v Peers Oasis Park Holdings Limited & 2 others [2021] KEELC 1789 (KLR)

Environment and Land Court
29 September 2021
4,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect an apartment owner's gate and water tank because she had built them on common property without her landlord's consent.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Milimani (Oguttu Mboya, J) on a Notice of Motion dated 31st March 2021, filed alongside an appeal against the Ruling of Hon. E. Wanjala, Principal Magistrate, of 19th March 2021 dismissing an application for a temporary injunction in Chief Magistrate's Civil Suit No. E5145 of 2020. The Appellant/Applicant, purchaser of Apartment B1 on L.R No. 330/1342, Gitanga Close, Lavington, sought a temporary injunction restraining the Respondents from removing a gate and grill she had erected at her backyard, together with a water tank connected to unmetered water. The Respondents objected on grounds of res judicata and argued the structures encroached on common areas in breach of Clause 3.5.2 of the Lease, which prohibited alterations without lessor's consent. The court first rejected the preliminary objection, holding that under Order 42 rule 6(6) of the Civil Procedure Rules an appellate court may grant a temporary injunction pending appeal, and that res judicata does not apply where a matter is escalated on appeal. On the merits, the court found no prima facie case: the Applicant had not denied fencing common areas and connecting to unmetered water, and had not exhibited the consent she alleged. No irreparable loss was shown, since removal of the structures merely restored the common area and any loss was monetarily compensable. The balance of convenience did not favour the Applicant, who approached the court with unclean hands. The application was dismissed with costs to the Respondents and the interim injunctions discharged.

Key legal issues

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01

Res judicata

Holding

The preliminary objection fails; the appellate court has jurisdiction under Order 42 rule 6(6) to entertain a fresh injunction application pending appeal

Reasoning

The court held that res judicata bars re-hearing of a matter finally determined on merits by a competent court, but not where the same dispute is escalated on appeal. Since the injunction issue was before the ELC in its appellate jurisdiction for the first time, the doctrine was inapplicable and the objection was misconceived.

p. 3
02

Prima facie case

Holding

None established; the Applicant's own conduct breached Clause 3.5.2 of the Lease by fencing common areas and connecting to unmetered water without consent

Reasoning

The Applicant did not deny fencing and annexing part of the common area, mounting a water tank and connecting unmetered water, contrary to Clause 3.5.2 requiring lessor's consent. The alleged verbal consent was not exhibited in writing. Following Mrao and Nguruman, no apparent infringement of a right was shown.

p. 4
03

Irreparable loss

Holding

Not proven; restoration of the common area is compensable in monetary terms at worst

Reasoning

The Respondents' action merely restores the alienated common area to its original status and averts unmetered water use. Any loss from removing the gate, grill, pavement and tank is quantifiable and compensable, so no irreparable injury was demonstrated.

p. 6
04

Balance of convenience and clean hands

Holding

It does not tilt in the Applicant's favour; she approached the court with unclean hands

Reasoning

The Applicant knowingly bought the apartment in its demarcated state, appreciated that areas outside it were common areas, and yet fenced them off and installed a tank. Such conduct disentitles her to the equitable remedy of injunction, per the clean-hands principle.

p. 6

Legal principles established

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  • A party who has commenced an appeal from a subordinate court may apply for a temporary injunction in the appellate court under Order 42 rule 6(6), and such an application is not barred by res judicata merely because a similar application was determined by the trial court
  • A lessee may not undertake works altering the original site plan or encroaching on common areas without the lessor's or co-owners' consent, and injury from such unilateral alterations is not adequately remedied by damages
  • A party in breach of binding lease clauses cannot claim irreparable loss arising from a restorative direction, and cannot invoke its own infraction as a shield; equity denies relief to one with unclean hands

Court orders

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  1. 1.The Notice of Motion Application dated 31st March 2021 is dismissed with costs to the Respondents
  2. 2.The interim orders of injunction granted on 6th April 2021 and variously extended are discharged
  3. 3.Costs of the application to be borne by the Appellant/Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 42 rule 6(6)

Cases cited (8)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2019] eKLR
  • Karia & Another v The Attorney General and Others
    [2005] 1 EA 83
  • SHAINAZ JAMAL & 8 OTHERS v ABDULRASUL MANJI & ANOTHER
    (2017) eKLR
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2019] eKLR
  • Speaker of the County Assembly - Kisii County & 2 others v James Omariba Nyaoga
    [2015] eKLR
  • John Onyancha Zurwe v Oreti Atinda alias Olethi Atinda
    [Kisumu Civil Appeal No. 217 of 2003] (UR)
  • PATRICK WAWERU MWANGI & ANOTHER v HOUSING FINANCE COMPANY OF KENYA LIMITED
    (2013) eKLR
On appeal from
Chief Magistrate's Court
Civil Suit No. E5145 of 2020 (Ruling by Hon. E. Wanjala, Principal Magistrate)
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules, 2010 — appellate jurisdiction over a subordinate court's interlocutory decision

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, "Chogi’s Garage Limited v Peers Oasis Park Holdings Limited & 2 others [2021] KEELC 1789 (KLR)", Case Analysis (2021). Notice of Motion dated 31st March 2021 arising from an appeal against the Ruling of Hon. E. Wanjala, Principal Magistrate, in Chief Magistrate's Court Civil Suit No. E5145 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1789/eng@2021-09-29

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