The Zambezi Hospital Limited v Njiiri & 3 others (Environment & Land Case E033 of 2022) [2022] KEELC 2380 (KLR)
The bottom line
#The Environment and Land Court ordered a Nairobi landlord to unlock and return a hospital's premises and equipment, ruling the lockout illegal without a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
Yes. The defendants did not dispute that the auctioneer chased away hospital staff and locked the premises, amounting to an eviction; no court order authorising the eviction was produced, so it was illegal, and the distrained goods being tools of trade gave the applicant a prima facie case
Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found that the undisputed lock-out and eviction of the hospital, undertaken without any court order, together with distress upon tools of trade immune under the Distress for Rent Act, established a prima facie case with a probability of success at trial.
Whether irreparable loss was demonstrated
Yes. Continued closure of a hospital may mean the plaintiff never attracts patients again, a loss not compensable in damages
The court accepted counsel's submission that a continued closure of the hospital may result in the plaintiff permanently losing patients, and found that the plaintiff had demonstrated irreparable loss which could not adequately be compensated by an award of damages.
Whether a mandatory injunction could issue at the interlocutory stage
Yes. Having found the eviction unlawful and the distrained goods tools of trade, this was a clear case capable of being decided at once under the Kenya Breweries v Okeyo / Halsbury test
Relying on Kenya Breweries Ltd v Washington O. Okeyo, which restates Halsbury's Laws Vol 24 paragraph 948, the court held that where the act is simple and summary and easily remedied, or the case is clear, a mandatory injunction may be granted interlocutorily; the plaintiff therefore deserved restoration to possession.
Balance of convenience
It tilts in favour of the plaintiff, which had undertaken all modifications of the premises to operate a hospital
The court noted the plaintiff had invested in renovations and fit-out works including erecting a modern operating theatre, so the balance of convenience favoured restoring it to possession pending trial.
Legal principles established
#- A landlord may not pursue both distress for rent and eviction/forfeiture against a defaulting tenant; the two remedies cannot be taken together to the landlord's benefit
- Goods which are tools of trade, such as items in a hospital, are immune from distress for rent
- A mandatory injunction may be granted on an interlocutory application where the case is clear and capable of being decided at once, or where the act done is simple and summary and easily remedied
- Eviction carried out without a court order is illegal and unlawful
Court orders
#- 1.A mandatory order of injunction pending the hearing and determination of the suit compelling the defendants to forthwith remove all padlocks placed at the main gate, grant unrestricted and unconditional access to and/or restore the plaintiff back into the premises known as The Zambezi Hospital, situated at South C, Mai Mahiu/Thogoto road, Nairobi
- 2.A mandatory order of injunction pending the hearing and determination of the suit directing the defendants to forthwith return to the plaintiff all the hospital medical equipment and/or tools of trade carried away or attached at the premises
- 3.An order of injunction restraining the defendants, whether by themselves, their servants and/or agents, from levying distress for rent or in any other way interfering with the plaintiff's quiet possession of the suit premises pending the hearing and determination of the suit
- 4.Costs of the application to abide the outcome of the main suit
- 5.The plaintiff/applicant directed to make proposals to the 1st defendant on how to clear the rent arrears
- Jurisdiction invoked
- Section 12(2)(7) of the Environment and Land Court Act No 19 of 2011 and Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Zambezi Hospital Limited v Njiiri & 3 others (Environment & Land Case E033 of 2022) [2022] KEELC 2380 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated February 3, 2022 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2380/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.