Gobind Enterprises Limited v Temple (Environment & Land Case E048 of 2022) [2022] KEELC 3095 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
No prima facie case with probability of success was established
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.
Irreparable harm and balance of convenience
Neither irreparable loss nor the balance of convenience favoured the applicant
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.
Interlocutory mandatory injunction
No special circumstances existed to justify a mandatory injunction
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.
Competence of the application
The application was incompetent for failure to cite Order 40 of the Civil Procedure Rules
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.
Legal principles established
#- 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
#- 1.The notice of motion dated February 10, 2022 is dismissed with costs to the defendant/respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.