Chogi’s Garage Limited v Peers Oasis Park Holdings Limited & 2 others [2021] KEELC 1789 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
The preliminary objection fails; the appellate court has jurisdiction under Order 42 rule 6(6) to entertain a fresh injunction application pending appeal
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.
Prima facie case
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
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.
Irreparable loss
Not proven; restoration of the common area is compensable in monetary terms at worst
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.
Balance of convenience and clean hands
It does not tilt in the Applicant's favour; she approached the court with unclean hands
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.
Legal principles established
#- 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
#- 1.The Notice of Motion Application dated 31st March 2021 is dismissed with costs to the Respondents
- 2.The interim orders of injunction granted on 6th April 2021 and variously extended are discharged
- 3.Costs of the application to be borne by the Appellant/Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.