Njue v Kiura
The bottom line
#An Embu court blocked a landlord from evicting a business tenant until his appeal is heard, because eviction would destroy his livelihood.
What this practically means
#Executive summary
#Key legal issues
#Correct legal basis for interim orders pending appeal from a tribunal
Though brought under Order 40 Rule 1, the application properly falls under Order 42 Rule 6(6); the mis-citation is curable under Order 51 rule 10
The court noted the application sought interim orders pending hearing of an appeal, a power conferred on the High Court in exercise of appellate jurisdiction by Order 42 Rule 6(6), provided the procedure for instituting the appeal has been complied with. The wrong rule cited was a curable defect under Order 51 rule 10.
Whether the appeal is frivolous
The appeal is not frivolous; the memorandum of appeal raises arguable issues, including whether the applicant was a tenant
Applying the definition of frivolity from Madison Insurance v Kamanda Gitau, the court examined the grounds on the memorandum of appeal and found the appeal had substance and was capable of reasoned argument, particularly on the existence of a landlord-tenant relationship.
Balance of convenience and hardship
Balance of convenience tilts in favour of the applicant; refusal would inflict great hardship on him while no hardship would befall the respondent since rent remains payable
The respondent, despite calling the applicant a trespasser, did not dispute documents introducing the applicant as a tenant or the petty cash vouchers evidencing payment. The applicant's business was his only livelihood and he was servicing bank loans; rent remains recoverable by the respondent under the law.
Whether the appeal would be rendered nugatory
Disallowing the application would render the appeal nugatory as eviction would cause an irreversible loss of customers and business not compensable by damages
Relying on George Otieno Gache v Judith Akinyi Bonyo on the meaning of 'nugatory', the court held that eviction would be hard to reverse: the applicant's customers might move away permanently and damages would not suffice for loss of a livelihood-sustaining business.
Prima facie case and irreparable injury under Giella
The intended appeal amounts to a prima facie case and the applicant would suffer irreparable injury not adequately compensable by damages
Applying Mrao Ltd v First American Bank, the court found an arguable right apparently infringed, calling for explanation from the respondent who received rent and issued introductory letters. Closure of the business would mean loss of loyal customers and inability to service loans, an injury beyond monetary compensation.
Legal principles established
#- An injunction pending appeal is discretionary and will be refused against a frivolous appeal, where it inflicts greater hardship than it avoids, or where refusal would not render the appeal nugatory; the Giella principles also guide the court
- A defect in citing the wrong procedural provision is curable under Order 51 rule 10 where it does not affect the substance of the application
Court orders
#- 1.Application allowed in terms of prayer 3: pending hearing and determination of the appeal, the respondent barred from evicting or terminating the applicant's tenancy of LR Embu/Municipality/1172/916
- 2.Prayer 4 (OCPD Embu to ensure compliance) declined
- 3.No orders as to costs
- On appeal from
- Business Premises Rent Tribunal
- Embu BPRT No. E0011 of 2021 Atanasio Ndwiga vs Patrick Njiru Kuria
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules 2010 - appellate jurisdiction to grant temporary injunction pending appeal from a tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njue v Kiura", Case Analysis (2022). Environment & Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14933/eng@2022-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.