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ELCDismissedNot stated in the judgment (referenced matter: Milimani CMCC No 3143 of 2019)· [2022] KEELC 3095 (KLR)

Gobind Enterprises Limited v Temple (Environment & Land Case E048 of 2022) [2022] KEELC 3095 (KLR)

Environment and Land Court (lease/land dispute heard at Nairobi; court not expressly named in the judgment text)
30 June 2022
2,953 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to stop a school's eviction because its lease had expired, rent was unpaid, and the correct court procedure wasn't followed.

What this practically means

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Executive summary

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This was a notice of motion dated February 10, 2022 in which the plaintiff, Gobind Enterprises Limited (trading as Guru Nanak Academy), sought temporary injunctions restraining the defendant trustees of Siri Gurdwara (Sikh Temple) from evicting it, interfering with its enjoyment of, or selling premises known as LR No. 2x9/6xx8 on Hombe/Juja Road, Nairobi, and compelling the defendant to offer it a first option to buy or renew the lease. The application was anchored on sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, 2010. The lease, dated November 1, 2016, was for 5 years 3 months and expired on January 31, 2022, after which the defendant demanded vacant possession. The plaintiff argued breach of clauses 3(g), (h) and (i) on renewal and the first option to buy, and relied on the school's 110-plus pupils. The defendant countered that the lease expired by effluxion of time, that the plaintiff concealed rent arrears of Kshs 8,230,000 and prior distress proceedings (Milimani CMCC No. 3143 of 2019), and that the plaintiff never invoked Order 40. The court framed four issues and found the applicant failed to establish a prima facie case, irreparable loss, or the balance of convenience; no special circumstances justified a mandatory injunction; and the failure to cite Order 40 rendered the application incompetent, a defect that could not be cured by Article 159(2)(d). The application was dismissed with costs to the defendant on June 30, 2022, by L. Komingoi J.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

No prima facie case with probability of success was established

Reasoning

The lease expired on January 31, 2022. Clause 3(g), (h) and (i) set out specific steps for renewal and the first option to buy, and the applicant failed to demonstrate it followed those steps. Non-disclosure of rent arrears and the distress proceedings in Milimani CMCC No 3143 of 2019 was not controverted. Damages could compensate any loss.

p. 5
02

Irreparable harm and balance of convenience

Holding

Neither irreparable loss nor the balance of convenience favoured the applicant

Reasoning

The applicant was in rent arrears and had not demonstrated it was up to date in rent payments; the deposit slips were for Kshs 200,000 in compliance with a consent in prior litigation. The lease had expired and any loss was compensable in damages, while the balance of convenience favoured the owner of the premises.

p. 6
03

Interlocutory mandatory injunction

Holding

No special circumstances existed to justify a mandatory injunction

Reasoning

Citing Kenya Breweries Ltd v Washington O. Okeyo and Nation Media Group v John Harun Mwau, the court applied the rule that mandatory injunctions on interlocutory applications are granted only in clear cases or where special circumstances exist, such as where a defendant steals a match on the plaintiff. None was shown here.

p. 6
04

Competence of the application

Holding

The application was incompetent for failure to cite Order 40 of the Civil Procedure Rules

Reasoning

The motion was anchored on sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1, but interlocutory injunctions are governed by Order 40. No explanation was given for the omission, the application having been drawn by an advocate, and reliance on Article 159(2)(d) could not cure the defect.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must make full and frank disclosure of all relevant facts and show a legal or equitable right requiring protection
  • An interlocutory mandatory injunction requires a higher standard and demonstration of special or exceptional circumstances
  • Failure to invoke the correct procedural provision renders an application incompetent notwithstanding Article 159(2)(d)

Court orders

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  1. 1.The notice of motion dated February 10, 2022 is dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Civil Procedure Rules, 2010Order 40
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (14)

  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Njenga vs Njenga
    [1991] KLR 401
  • Microsoft Corporation vs Mitusimi Computer Garage Ltd
    [2001] 2 EA 460
  • Peeraj General Trading & Contracting Company Limited (Kenya) vs Mumias Sugar Company Limited
    [2016] eKLR
  • Julius Ntogaiti Methang'athia & 4 Others vs District Land Adjudication & Settlement Officer Meru North (Nyambene) District & 3 Others
    [2000] eKLR
  • Sunrise Properties Limited vs Fifty Investments Ltd & Another
    [2007] eKLR
  • Haile Selassie Libara Muhalia vs Murang'a Properties Ltd & Another
    [2007] eKLR
  • National Bank of Kenya vs Pipelastic Samkolit (K) Ltd & Another
    [2001] eKLR
  • Kenya Breweries Ltd & Another vs Washington O. Okeyo
    [2002] eKLR
  • Nation Media Group & 2 Others vs John Haron Mwau
    [2014] eKLR
  • Shariff Abdi Hassan vs Nadhif Jama Adan
    [2006] eKLR
  • Kenleb Cons Ltd vs New Gatititu Service Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 rule 1 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, "Gobind Enterprises Limited v Temple (Environment & Land Case E048 of 2022) [2022] KEELC 3095 (KLR)", Case Analysis (2022). Not stated in the judgment (referenced matter: Milimani CMCC No 3143 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30

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