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ELCDismissed· [2022] KEELC 2412 (KLR)

Blue Diamond Ventures Limited & another v Mbakimo Limited & 3 others (Environment & Land Case E437 of 2021) [2022] KEELC 2412 (KLR)

Environment and Land Court
5 May 2022
LKL. Komingoi
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop a landlord from collecting rent because the tenants owed rent since 2016 and never asked for that protection in their lawsuit.

What this practically means

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Executive summary

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The plaintiffs/applicants, who leased LR No. Dagoretti/Kangemi/1813 from the defendants/respondents by a lease agreement dated November 1, 2016 for 21 years to build residential and commercial apartments, moved the court by Notice of Motion dated December 10, 2021 seeking a temporary injunction restraining the defendants from demanding or collecting rent from tenants on the premises or interfering with their quiet possession, pending hearing of the suit. They alleged the 2nd defendant re-entered the premises on October 8, 2021, issued tenants with a notice of change of management, and had been collecting rent of about Kshs.120,000 per month since 2016, amounting to breach of the lease and trespass. The defendants opposed, asserting the plaintiffs had not paid rent since November 1, 2016 and that re-entry was per the lease terms. Justice L. Komingoi framed two issues: whether the application met the injunction threshold and costs. Applying Giella v Cassman Brown, Mrao Ltd and Kenleb Cons Ltd, the court held the applicants had uncontroverted rent arrears from 2016, failed to demonstrate a protectable right or make full disclosure, and, decisively, that the plaint contained no prayer for injunction, so granting one would be futile as parties are bound by their pleadings. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction

Holding

The application failed; the applicants did not demonstrate a prima facie case or a right requiring the court's protection.

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd on prima facie cases. The uncontroverted evidence of the 2nd defendant showed the plaintiffs had been in rent arrears since 2016. Further, the plaint itself contained no prayer for injunction, so any injunctive orders would be futile, as parties are bound by their pleadings. Citing Kenleb Cons Ltd, the applicants also failed to make full disclosure and to show a legal or equitable right needing protection.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must make a full and frank disclosure of all relevant facts and demonstrate a legal or equitable right requiring protection.
  • Parties are bound by their pleadings; a court will not grant relief that is not sought in the plaint.

Court orders

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  1. 1.The Notice of Motion dated December 10, 2021 is dismissed.
  2. 2.The costs do abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 40 rules 1 and 2
  • Civil Procedure Rules, 2010Order 51

Cases cited (3)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Kenleb Cons Ltd v New Gatitu Services Station Limited & another
    [1990] KLR 557
Jurisdiction invoked
Section 3A of the Civil Procedure Act, cap 21, and Order 40 rules 1 and 2 and Order 51 of the Civil Procedure Rules, 2010

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, "Blue Diamond Ventures Limited & another v Mbakimo Limited & 3 others (Environment & Land Case E437 of 2021) [2022] KEELC 2412 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2412/eng@2022-05-05

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