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ELCDismissedNot stated in the judgment (appeal against ruling in Milimani CMC ELC No. E419 of 2020)· [2022] KEELC 203 (KLR)

Umar Auto Garage New & another v Githere Investments Limited [2022] KEELC 203 (KLR)

High Court of Kenya
21 April 2022
MMM.D Mwangi
1,287 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to stop an eviction pending appeal because the tenant's lease had expired, confirming that expired leases rarely justify interim protection.

What this practically means

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Executive summary

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The Appellant/Applicant, a tenant of premises on L.R No. 2259/2271 Karen, Nairobi, moved the High Court by Notice of Motion dated 16th December 2021 seeking a temporary injunction restraining the Respondent from evicting it or interfering with its possession pending an appeal against a ruling of Senior Principal Magistrate Hon. D.W Mburu delivered on 10th December 2021. That ruling had denied the Applicant interim injunction in proceedings before the Milimani Chief Magistrate's Court (Milimani CMC ELC No. E419 of 2020). The Applicant also sought police assistance to enforce compliance. The application, brought under Sections 1A and 1B of the Civil Procedure Act and Order 40 Rules 1 and 2 and Order 42 Rule 6, was supported by affidavits of Mohammed Raffi Rajput and opposed by the Respondent through the affidavits of Grace Githere, who contended the lease had lapsed, the Applicant was in rent arrears, and the distress for rent was lawful. The court disposed of the application by written submissions and framed two issues: whether an interim injunction may be granted pending appeal, and whether the test for such an injunction was satisfied. The court held that Order 42 Rule 6 empowers the High Court to grant a temporary injunction in its appellate jurisdiction where the procedure for instituting the appeal has been complied with. Applying the principles in Patricia Njeri v National Museum of Kenya and Giella v Cassman Brown, the court found the Applicant had no prima facie case since the lease had expired and the lease required the lessee to yield up the premises on expiry. The application was dismissed with costs.

Key legal issues

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01

Whether an interim injunction may be granted pending appeal

Holding

Yes - Order 42 Rule 6 empowers the High Court, in its appellate jurisdiction, to grant a temporary injunction in deserving cases where the procedure for instituting the appeal has been complied with.

Reasoning

The court relied on the express wording of Order 42 Rule 6, which confers power on the High Court in the exercise of its appellate jurisdiction to grant a temporary injunction provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. Compliance entails filing a memorandum of appeal under Order 42.

p. 2
02

Whether the Applicant satisfied the test for an interim injunction pending appeal

Holding

No. The Applicant failed to show a prima facie case with a probability of success because the lease on which its possession rested had expired.

Reasoning

Applying the principles in Patricia Njeri v National Museum of Kenya and Giella v Cassman Brown, the court found the discretion could not be exercised in the Applicant's favour. The lease term had expired and the lease required the lessee to yield up the premises on expiry. Continued occupation was therefore unjustifiable and the appeal could not be said to merit preservation of the status quo.

p. 2

Legal principles established

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  • Under Order 42 Rule 6, the High Court may grant a temporary injunction in the exercise of its appellate jurisdiction where the procedure for instituting the appeal has been complied with.
  • Compliance with the appeal-institution procedure means filing a memorandum of appeal in accordance with Order 42.
  • Discretion to grant an interim injunction pending appeal is judicial, guided by the principles in Patricia Njeri & 3 others v National Museum of Kenya and Giella v Cassman Brown.
  • Parties are bound by the terms of their contract, including a covenant to yield up premises on expiry of the lease.

Court orders

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  1. 1.The Notice of Motion Application dated 16th December 2021 is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Civil Procedure RulesOrder 42 Rule 6 (and Order 42 Rule 1)

Cases cited (3)

  • Kenya Harlequin Football Club Vs Quaco Two Hundred and Thirty Two Ltd & Another
    (2022) eKLR
  • Patricia Njeri & 3 others vs National Museum of Kenya
    (2004) eKLR
  • Giella Vs Cassman Brown & Company Ltd
    (1973) EA 358
On appeal from
Milimani Chief Magistrate's Court
Milimani CMC ELC No. E419 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (High Court's appellate jurisdiction to grant temporary injunction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Umar Auto Garage New & another v Githere Investments Limited [2022] KEELC 203 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal against ruling in Milimani CMC ELC No. E419 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/203/eng@2022-04-21

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