Farah & 25 others v Mega Wholesalers Limited & another (Environment & Land Case E026 of 2023) [2024] KEELC 70 (KLR)
The bottom line
#The Environment and Land Court stopped the eviction of Eastleigh shop tenants, holding that a property's new owner inherits the lease obligations unless the lease says otherwise.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success for an interim injunction
Yes - it is common ground between the Plaintiffs and the 2nd Defendant that the Plaintiffs were tenants in the suit property, and the validity of the leases is an issue for trial.
The court applied the Nguruman principle that an applicant need only show a fair and bona fide question as to the existence of the right alleged, on a balance of probabilities. It found that the Plaintiffs' tenancy was not disputed by the 2nd Defendant, and that the implied term transferring lease obligations to a new owner meant the 1st Defendant took subject to the leases absent an explicit contrary intention. Doubts on lease validity were left for trial.
Whether the Plaintiffs would suffer irreparable loss not compensable by damages, and where the balance of convenience lies
Yes - the Plaintiffs established irreparable loss arising from their businesses, renovations and accrued goodwill over eight years, and the balance of convenience tilts in their favour.
The court reasoned that eviction would destroy the Plaintiffs' diverse businesses, renovations and business goodwill accrued over eight years of occupation, loss which damages could not adequately compensate. Considering the totality of the Plaintiffs' case, the balance of convenience favoured preserving the status quo pending trial, with the Plaintiffs continuing to pay rent to the 1st Defendant.
Whether the court should exercise supervisory jurisdiction under Article 165(6) and (7) over the BPRT proceedings
No - supervisory review is inappropriate and unprocedural while an appeal against the BPRT decision is pending.
The court noted that an appeal, ELCA E009/2023, was already pending before Lady Justice Omange against the BPRT decision in BPRT Cause No. 1227 of 2022. The judge hearing the appeal would have occasion to call for and examine the BPRT record and satisfy itself as to legality and procedural propriety. Exercising parallel supervisory powers would therefore be inappropriate and unprocedural.
The 2nd Defendant's objection to representation by the law firm of Ahmednasir Abdullahi Advocates LLP on grounds of conflict of interest
The objection was sufficiently responded to, and in any event the 2nd Defendant had made no application for the court to determine.
The 2nd Defendant alleged in its replying affidavit that the Plaintiffs' law firm had previously acted for it in the transaction, raising a conflict of interest, and sought striking out of the pleadings filed by the firm. The Plaintiffs responded via a further affidavit showing the 2nd Defendant was represented by Githui & Partners Advocates. The court held the objection was adequately answered and, absent a formal application, there was nothing to determine.
Legal principles established
#- In an interlocutory application, the court is not required to make conclusive or definitive findings of fact or law on contradictory affidavit evidence.
- On an application for injunction, the court does not hold a mini trial; the applicant need only show a fair and bona fide question to raise as to the existence of the right alleged, on a balance of probabilities.
- There is an implied term in a lease that, on transfer of leased property absent an explicit contrary intention, the obligations under the lease transfer to, and are exercisable against, the new owner.
- A court should not exercise supervisory jurisdiction under Article 165(6) and (7) over a tribunal's decision where an appeal against that decision is pending.
- Under Order 40 Rule 6 of the Civil Procedure Rules, an interim injunction cannot exceed twelve months, within which the suit should be set down for hearing and determination.
Court orders
#- 1.The Plaintiffs' application dated 31st January 2023 is dismissed in its entirety
- 2.An order of interim injunction be and is hereby issued, restraining the Defendants by themselves, and or agents from harassing, evicting the Plaintiffs/Applicants, encroaching into, transferring, alienating and terminating the Plaintiffs/Applicants tenancy or lease or in any other way dealing with or interfering with the Plaintiffs/Applicants quiet possession over all the shops erected on the suit property, LR. No. 36/VII/401 pending hearing and determination of this suit
- 3.The Plaintiffs/Applicants shall in the meantime continue paying rent to the 1st Defendant/Respondent
- 4.The costs of the application shall be in the cause
- Jurisdiction invoked
- Article 165(6) and (7) of the Constitution invoked for supervisory jurisdiction; interim injunctive relief under Order 40 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farah & 25 others v Mega Wholesalers Limited & another (Environment & Land Case E026 of 2023) [2024] KEELC 70 (KLR)", Case Analysis (2024). ELC Case (Notice of Motion dated 30th January 2023 and 31st January 2023) - Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/70/eng@2024-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.