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ELCDismissedNot stated in the judgment (Notice of Motion dated 2nd September 2024)· [2024] KEELC 6853 (KLR)

Mbugua & 3 others v Turi Gardens Limited (Environment & Land Case E363 of 2024) [2024] KEELC 6853 (KLR)

Environment and Land Court
14 October 2024
5,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a landlord terminating a lease early, ruling that money can compensate the tenants, but ordered KES 2.5 million secured for their relocation.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by Notice of Motion dated 2nd September 2024 under Order 40 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking temporary injunctions restraining the Defendant/Respondent from interfering with their enjoyment of L.R No. 1/1396 (Original Number 1/1395/1), breaching the lease dated 1st January 2021, entering the premises, evicting them or interfering with their businesses pending the hearing of the suit. The Applicants argued they held a fixed-term lease of 5 years 3 months containing no termination clause, and that the Respondent's notice dated 26th July 2024 demanding vacant possession breached the lease. The Respondent countered that clause 5.4 of the lease permitted termination where a sale of the property was envisaged; that it needed to sell to salvage another Kilimani property facing foreclosure; that it had procured a purchaser; and that any loss to the Applicants was quantifiable and compensable in damages, with relocation costs undertaken. The court framed three issues: prima facie case, irreparable loss, and balance of convenience. It found a prima facie case established on the Mrao and Nguruman standards, but held the Applicants failed to demonstrate irreparable loss since their losses were ascertainable, quantifiable and compensable in damages. On balance of convenience, the court held it would favour the Respondent as registered proprietor. The application was dismissed, with costs abiding the outcome of the main suit, and the court directed the Respondent to deposit KES 2,500,000 in an escrow account for the Applicants' relocation expenses and to execute an undertaking as to damages within 30 days.

Key legal issues

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01

Prima facie case

Holding

The Applicants established a prima facie case with probability of success, having executed a lease and being threatened with termination before expiry of the fixed term.

Reasoning

The lease dated 1st January 2021 was not disputed, and the Respondent's notice dated 26th July 2024 sought vacation before the expiry of the 5 years 3 months term. The court found arguable issues, including the scope of clause 5.3 versus clause 5.4 of the lease, that could only be resolved at plenary hearing, and applied the Mrao and Nguruman definitions of a prima facie case.

p. 7
02

Irreparable loss

Holding

The Applicants failed to demonstrate irreparable loss because their alleged losses were quantifiable and compensable in damages.

Reasoning

Although a prima facie case was established, the Applicants had to prove irreparable injury not adequately compensable in damages. The court found that damages for breach of contract and relocation costs were measurable and quantifiable. It adopted the Nguruman and Kenya Commercial Finance Co. Ltd v Afraha Education Society principles that where damages are adequate, injunctions should not issue.

p. 9
03

Balance of convenience

Holding

The balance of convenience would have tilted in favour of the Respondent as registered proprietor, rendering the question superfluous given the failure on irreparable loss.

Reasoning

The Respondent was the registered owner seeking to sell the suit property to salvage another property under threat of foreclosure, and had already executed a sale agreement with a third-party purchaser. The Applicants did not address the balance of convenience. The court reasoned that where a lessee's rights conflict with those of the registered proprietor, the balance tilts towards the proprietor, and adopted the Kogo v Tenai formulation on comparative inconvenience.

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.
  • Where damages are an adequate remedy, a temporary injunction should not be granted, however strong the applicant's claim may appear.
  • Where the rights of a lessee conflict with those of the registered proprietor, the balance of convenience tilts in favour of the registered proprietor.

Court orders

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  1. 1.The Application dated the 2nd September 2024 be and is hereby dismissed.
  2. 2.Costs of the application shall abide the outcome of the main suit.
  3. 3.The Defendant/Respondent shall deposit the sum of kes.2,500,000/= only, in an escrow account in the name of the advocates for the respective parties within 30 days from the date hereof.
  4. 4.The deposit shall be utilized by the Applicants on account of relocation expenses and shall be available to the Applicants at their instance.
  5. 5.The Defendant/Respondent shall execute an undertaking as to damages that may arise and/or flow from the breach of the contract.
  6. 6.The undertaking as to payment of damages shall be executed and filed with the deputy registrar within 30 days from the date hereof.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration Act, 2012Section 36(2)

Cases cited (10)

  • Chimanlal Megjinaya Shah & Another v Oxford University Press [EA] LTD
    [2007] eKLR
  • Festus Ogada v Hans Mollin
    (Civil Appeal No. 100 of 2007) [2009] KECA 409 (KLR) (20 January 2009)
  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Waithaka v Industrial & Commercial Development Corporation
    [2001] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Vivo Energy v Maloba Petrol Station & Another
    [2015] eKLR
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mohanson Kenya Ltd v The Registrar of Titles & Another
    [2017] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (Environment & Land Case 221 of 2017) [2018] KEELC 2424 (KLR) (29 June 2018) (Ruling)
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbugua & 3 others v Turi Gardens Limited (Environment & Land Case E363 of 2024) [2024] KEELC 6853 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 2nd September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6853/eng@2024-10-14

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