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ELCAllowedNot stated in the extract· [2022] KEELC 1365 (KLR)

Sweetland Holdings Limited v Dukamatt Supermarket Limited [2022] KEELC 1365 (KLR)

Environment and Land Court
17 February 2022
LKL. Komingoi
919 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by L. Komingoi J of the Environment and Land Court, Nairobi, determines a Notice of Motion dated 2nd July 2021 in which the Plaintiff/Applicant, registered proprietor of Title Number Nairobi/block 72/2936 - Lang'ata Mall, sought a temporary injunction restraining the 1st Respondent from trespassing on, wasting, constructing on, demolishing or alienating the suit property pending trial, plus police enforcement of the orders. The application, supported by the affidavit of Betty Kiplagat, was opposed by a replying affidavit of William Kimaru and canvassed by written submissions by consent. The Plaintiff argued a prima facie case as registered owner, a real threat of demolition by the Respondent seeking to recover costs of illegal structures, and irreparable harm. The Respondent countered that no evidence of a demolition threat existed, that it had handed over the building and tenants pursuant to Business Premises Rent Tribunal consent orders of 9th July 2020 and 11th July 2021, and that the balance of convenience favoured it given its heavy investment. Framing two issues - whether the injunction threshold was met and costs - the court found the fear of demolition real, held that a prima facie case existed since the structures were put up without the Plaintiff's consent, found irreparable harm likely as demolition would render the premises uninhabitable for tenants, and held that the balance of convenience favoured the Plaintiff because the Respondent had not settled rent arrears. The application was allowed in terms of prayers 3 and 4, with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether a temporary injunction should issue to restrain threatened demolition of structures on the applicant's registered land

Holding

Yes. The applicant established a prima facie case with probability of success because the structures were erected without its consent; irreparable harm was likely as demolition would render the premises uninhabitable; and the balance of convenience favoured the applicant since the respondent had not settled rent arrears.

Reasoning

The court applied the established injunction test. It found the fear of demolition real on the material before it, and since the respondent erected the structures without the applicant's consent, the applicant's registered proprietorship gave it a prima facie case. Demolition would render the premises uninhabitable for tenants, harm not adequately compensable in damages, and the respondent's unpaid rent arrears tipped the balance of convenience toward the applicant.

p. 2

Legal principles established

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  • The Giella v Cassman Brown conditions apply to temporary injunctions: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience.

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 3 of the Notice of Motion dated 2nd July 2021, restraining the 1st Respondent from trespassing on, wasting, constructing on, demolishing, alienating or otherwise interfering with Title Number Nairobi/block 72/2936- Lang'ata Mall pending hearing and determination of the suit
  2. 2.Officer Commanding Lang'ata Police Station and the Local Administration to enforce compliance, in terms of prayer 4
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 40 Rules 1, 2(1), 3(3); Order 50(1)
  • Constitution of KenyaArticle 40

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    [2003] KLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
  • Stek Cosmetic Ltd vs Family Bank Kenya Ltd
    [2020] eKLR
  • Shiva Carriers Limited vs Imperial Bank Limited & Another
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21), Order 40 Rules 1, 2(1) and 3(3) and Order 50(1) of the Civil Procedure Rules 2010, and Article 40 of the Constitution of Kenya

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, "Sweetland Holdings Limited v Dukamatt Supermarket Limited [2022] KEELC 1365 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1365/eng@2022-02-17

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