Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2022] KEELC 687 (KLR)

Jonathan Momanyi v Jinat Investment Company Limited & another [2022] KEELC 687 (KLR)

Environment and Land Court
23 March 2022
JOJ.M ONYANGO
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Kisii Environment and Land Court refused to reinstate a tenant who owed rent, ruling he failed to show special circumstances for a mandatory injunction.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kisii (J.M Onyango, J) disposed of the Plaintiff's Notice of Motion dated 29th November 2021, which sought interlocutory relief arising from a lease of premises known as Market Plaza on KISII MUNICIPALITY/BLOCK 111/77, Kisii County. The Plaintiff, a tenant paying Kshs. 176,000 monthly rent, complained that the 2nd Defendant broke into his premises on 16th November 2021, seized his goods and levied distress for rent pursuant to a Chief Magistrate's Court order of 11th November 2021. He contended that as a protected tenant under a controlled tenancy governed by Cap 301, distress required a Business Premises Rent Tribunal order, and sought mandatory injunctions reinstating him into the premises and restoring his goods, plus a temporary injunction against eviction or distress. The 1st Defendant, through its Director Dr. Anil Tailor, countered that the Plaintiff held over as a month-to-month tenant after a 5-year lease expired, owed Kshs. 1,800,000 in arrears, and that his goods were lawfully attached, advertised and sold on 29th November 2021. The court framed two issues: entitlement to a mandatory injunction to reinstate, and entitlement to a temporary injunction against eviction or distress. Applying Kenya Breweries v Okeyo, Nation Media Group v Harun Mwau, Giella v Cassman Brown and Mrao v First American Bank, the court found no special circumstances justified a mandatory injunction given unpaid rent arrears and evidence that the Plaintiff remained in occupation, and held the application overtaken by events since the goods had been sold. The legality of the distress was left for the full hearing. The application was dismissed with costs to the 1st Respondent.

Key legal issues

#
01

Whether to grant a mandatory injunction reinstating the Plaintiff into the premises

Holding

Refused; special circumstances not demonstrated

Reasoning

The court applied Kenya Breweries v Okeyo and Nation Media Group v Harun Mwau, holding that a higher standard than for a prohibitory injunction applies and the applicant must show special circumstances. Here there were unresolved rent arrears and sworn evidence that the Plaintiff was never evicted, so the required high degree of assurance was absent.

p. 2
02

Whether to grant a temporary injunction restraining eviction or distress

Holding

Refused; the application was overtaken by events

Reasoning

It was not in dispute that the Plaintiff's goods had been sold on 29th November 2021 and that the Plaintiff remained in occupation of the premises. The interlocutory restraint sought was therefore moot, and the legality of the distress process could only be resolved at a full hearing.

p. 3

Legal principles established

#
  • A mandatory injunction at interlocutory stage requires special circumstances and a higher standard of assurance than a prohibitory injunction
  • The Giella v Cassman Brown principles govern the grant of temporary injunctions
  • Definition of a prima facie case

Court orders

#
  1. 1.The Notice of Motion dated 29th November, 2021 is dismissed
  2. 2.Costs of the application to the 1st Respondent

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2(1)

Cases cited (4)

  • Kenya Breweries Limited v Washington Okeyo
    (2002) eKLR
  • Nation Media Group & 2 Others v Harun Mwau
    (2014) eKLR
  • Giella v Cassman Brown & Company Limited
    (1973) E.A 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
Jurisdiction invoked
Not stated in judgment; ruling on Notice of Motion dated 29th November, 2021

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jonathan Momanyi v Jinat Investment Company Limited & another [2022] KEELC 687 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/687/eng@2022-03-23

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