Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 6th November 2023 (Petition, ELC Mombasa)· [2024] KEELC 6508 (KLR)

Jihan Freighters Limited v Kenya Railways Corporation (Environment & Land Petition E013 of 2023) [2024] KEELC 6508 (KLR)

Environment and Land Court
9 October 2024
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Mombasa ordered Kenya Railways to stop blocking a tenant's access to leased premises while the main case continues.

What this practically means

#

Executive summary

#
By notice of motion dated 6th November 2023, the petitioner sought an interlocutory injunction restraining the respondent from interfering with its access, occupation and operations at the Kenya Railways Goodsshed (35,167 square feet) along Machakos Road, Mombasa Railway Station, pending determination of the Petition. The petitioner, a tenant under a nine-year lease from 1st June 2022 at Kshs. 4,800,000 per annum plus VAT, alleged two termination notices (24th January 2023 and 14th July 2023) followed by forcible eviction and locking of gates on 3rd November 2023. The respondent, through the affidavit of Mark Murkomen, opposed the application as an abuse of process, contending the petitioner materially breached the lease by changing user to selling tuktuks and vehicles, subletting without consent, and constructing without consent, and that the petitioner vacated voluntarily from 27th October 2023. The petitioner, in a further affidavit, denied the car-bazaar claim, produced an approval letter for the works, and argued the termination notices were null and void as the lease contained no termination clause. Only the petitioner filed submissions. Applying Giella v Cassman Brown and Nguruman, and Mrao on prima facie case, S. M. Kibunja, J found the petitioner established a prima facie case since tenancy and departure from the premises were undisputed, the continuing injury from eviction was irreparable, and the balance of convenience favoured the petitioner since the premises sat idle. The court allowed the motion in terms of prayer (3) and ordered the respondent to bear costs.

Key legal issues

#
01

Whether the petitioner established a prima facie case

Holding

Yes — tenancy and eviction were undisputed; only the manner of eviction was in dispute, so a prima facie case was established.

Reasoning

The court found it undisputed that the petitioner was a tenant of the respondent and that it no longer occupied the premises. The disputed fact was whether the petitioner was forced out or vacated voluntarily. On that material, a tribunal properly directing itself would conclude there is an apparent legal right infringed, calling for explanation or rebuttal, satisfying the Mrao standard for a prima facie case.

p. 3
02

Whether irreparable injury would be suffered absent the injunction

Holding

Yes — the eviction had paralyzed the petitioner's operations and impacted its finances and employees; the ongoing injury was not adequately compensable and the respondent had not restored the petitioner despite interim orders.

Reasoning

The petitioner had already been evicted and its operations paralyzed. Although a temporary injunction had been granted on 14th November 2023 and extended twice, the respondent had not restored the petitioner to the premises. The continuing injury would negatively and greatly impact employees and could not be adequately compensated, satisfying the second Giella limb.

p. 3
03

Where the balance of convenience lies

Holding

In favour of the petitioner — the suit premises appeared idle, so continued exclusion made no economic sense and merely increased damages the respondent and the public might have to pay.

Reasoning

The court noted that damages could compensate the petitioner if it succeeded, and that from affidavits in a pending application there was no activity on the suit property. Keeping the premises idle while inconveniencing the petitioner served no economic purpose; granting the injunction would reduce the damages the respondent, and by extension the public, might be condemned to pay should the petition succeed.

p. 4

Legal principles established

#
  • The three Giella v Cassman Brown conditions for an interlocutory injunction are separate, distinct and sequential hurdles the applicant must surmount.
  • Costs follow the event under section 27 of the Civil Procedure Act unless otherwise ordered for good reasons.

Court orders

#
  1. 1.The notice of motion dated 6th November 2023 is allowed in terms of prayer (3) — an injunction restraining the respondent, its agents, servants or workmen from interfering with or preventing the petitioner's access, occupation and operations at the Kenya Railways Goodsshed pending hearing and determination of the Petition
  2. 2.Costs to be borne by the respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 27

Cases cited (4)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd v First American Bank Of Kenya Ltd
    (2003) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (leasehold premises at Mombasa Railway Station); interlocutory injunction application in a pending petition

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jihan Freighters Limited v Kenya Railways Corporation (Environment & Land Petition E013 of 2023) [2024] KEELC 6508 (KLR)", Case Analysis (2024). Notice of motion dated 6th November 2023 (Petition, ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6508/eng@2024-10-09

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