Lagat & 20 others (Suing as the Registered Unit owners of Apartments at the development known as Viraj Garden Apartments) v Transeshvi Limited & 5 others (Environment & Land Case E247 of 2022) [2023] KEELC 51 (KLR)
The bottom line
#A Kenyan court stopped an apartment landlord side from cutting off water and electricity to unit owners, while requiring owners to keep paying service charges.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be stayed under section 6 of the Civil Procedure Act pending Milimani CMCELC E260 of 2022
Stay refused; the parties and issues in the earlier suit are not the same
The earlier suit is between the 6th defendant and Laikipia Park Limited; none of the plaintiffs are parties to it. Shareholding or directorship in Laikipia Park Limited does not make the plaintiffs parties, given the separate legal personality of a company. The issues in the two suits also differ, so the ingredients of section 6 were not met.
Whether the plaintiffs established a prima facie case
Yes; the complaints in the supporting affidavits met the threshold
Applying the Mrao and Nguruman definitions, the court found that the plaintiffs' complaints - exclusion from the management corporation, extraction of service charges without accounts, and contrary conduct under the Sectional Properties Act - showed an apparent infringement of a right warranting interrogation and protection.
Whether the plaintiffs would suffer irreparable loss
Yes; disconnection of essential services would occasion irreparable loss
The defendants admitted disconnecting water and electricity. Enjoyment of the right to housing under Article 43 depends on such essential services, as reinforced by the ICESCR. Such loss cannot adequately be compensated by damages, satisfying the second Giella limb.
Legal principles established
#- A company is separate and distinct from its shareholders and directors; suing a company does not make its shareholders or directors parties to the suit
- Requirements of the res sub-judice rule under section 6 of the Civil Procedure Act
- Definition of a prima facie case for interlocutory injunctions
Court orders
#- 1.Temporary injunction restraining the 1st-5th defendants from interfering, disconnecting or discontinuing services to the unit owners including electricity supply to common areas, water supply to all units and common areas, cleaning and security services
- 2.Mandatory injunction directing the defendants to immediately reconnect the plaintiffs to the water supply at the defendants' expense
- 3.Plaintiffs to pay the requisite monthly service charge to the 6th defendant pending the convening and holding of the AGM
- 4.Mandatory injunction directing the 1st-3rd defendants to convene an annual general meeting within 14 days with an agenda including formation of a proper board of management under section 26 of the Sectional Properties Act, all unit owners notified of their right to vote
- 5.Reliefs not expressly granted declined
- 6.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit premises and the Sectional Properties Act, 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lagat & 20 others (Suing as the Registered Unit owners of Apartments at the development known as Viraj Garden Apartments) v Transeshvi Limited & 5 others (Environment & Land Case E247 of 2022) [2023] KEELC 51 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/51/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.