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ELCPartially AllowedELC Appeal from Mombasa MCCC E372 of 2024· [2025] KEELC 7376 (KLR)

Al Abeid (As Trustee for and on Behalf of Abeid Awsgar Abeid, Arwa Abeid & Amira Abeid) v Goldstone Apartments Amangement Limited & 2 others (Environment and Land Appeal E008 of 2024) [2025] KEELC 7376 (KLR)

Environment and Land Court
29 October 2025
2,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a tenant's appeal, restored his injunction, and sent the lease dispute to arbitration as required by the lease.

What this practically means

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Executive summary

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The appellant appealed against the ruling of Hon. G. Sogomo, PM delivered on 13th September 2024 in Mombasa MCCC E372 of 2024, which dismissed his notice of motion dated 21st March 2024 seeking an interlocutory injunction restraining the respondents from terminating services (security, water, garbage collection and cleaning) provided under a sub-lease dated 17th January 2020. The appellant raised four grounds, including that the magistrate wrongly treated the 3rd respondent's replying affidavit as uncontroverted for want of a further affidavit, misapplied estoppel, and purported to vary the registered lease by raising service charge from Kshs.10,000 to Kshs.12,000 per month on the basis of unsigned minutes. On the first appeal, the court identified six issues. It found the trial magistrate's reference to the application dated 24th July 2024 was inadvertent, the subject ruling having concerned the application dated 21st March 2024. The court held it was erroneous for the trial magistrate to make a final finding that the appellant was in arrears of service charge at an interlocutory stage, since that was the principal issue in the still-pending main suit. Applying Giella, Nguruman, Mbuthia and Kogo, the court found the appellant had established a prima facie case and that the balance of convenience favoured him. Noting that Clause 3(a)(i) of the sub-lease mandated arbitration of all disputes, and invoking sections 19 & 20 of the Environment and Land Court Act, sections 1A & 1B of the Civil Procedure Act and Article 159(2)(c) & (d) of the Constitution, the court allowed the appeal, set aside the ruling of 13th September 2024, substituted an order granting the injunction subject to continued escrow deposits of Kshs.12,000 per month, referred the dispute to arbitration, and stayed the trial suit. Costs of the appeal were ordered to abide the outcome of the arbitration.

Key legal issues

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01

Whether the trial magistrate erred in holding that failure to file a further affidavit rendered the replying affidavit's allegations uncontroverted

Holding

The court did not rest its decision on this; instead it found the trial magistrate had erred by making final findings on the disputed arrears at an interlocutory stage

Reasoning

The court held that whether the appellant was in arrears of service charge was the main issue for determination in the main suit, which was yet to be heard. It was therefore erroneous for the trial magistrate to hold the appellant in arrears when determining an interlocutory injunction application, since courts must not make final determinations of contested facts at that stage.

p. 3
02

Whether the trial magistrate erred in varying the service charge from Kshs.10,000 to Kshs.12,000 on the basis of unsigned minutes

Holding

No variation occurred; the trial court merely dismissed the application, though it was erroneous for it to make final findings on arrears at the interlocutory stage

Reasoning

The court observed that the trial court only dismissed the injunction application and did not vary the lease terms. The unsigned minutes and the validity of the alleged service charge increase remained issues for the main suit or arbitration. The sub-lease provided for service charge of Kshs.10,000 per quarter revisable annually, and the appellant established a prima facie case on that basis.

p. 3
03

Whether the appellant met the threshold for a temporary injunction

Holding

Yes - a prima facie case and balance of convenience were established, justifying an injunction subject to conditions

Reasoning

Applying Giella and Nguruman, the court found the sub-lease provided for service charge of Kshs.10,000 per quarter revisable annually, the alleged arrears were probable only, and the appellant had a prima facie case. On irreparable harm, the appellant's security, water, garbage collection and cleaning services were at risk, and the balance of convenience favoured the appellant.

p. 4
04

Whether the dispute should be referred to arbitration

Holding

Yes - Clause 3(a)(i) of the sub-lease mandated arbitration, and the suit was stayed pending arbitration

Reasoning

Clause 3(a)(i) of the sub-lease dated 17th January 2020 required all disputes touching the sub-lease to be referred to a single arbitrator whose decision would be final and binding. Invoking sections 19 & 20 of the Environment and Land Court Act, sections 1A & 1B of the Civil Procedure Act and Article 159(2)(c) & (d) of the Constitution, the court referred the dispute to arbitration and stayed the trial suit.

p. 5
05

Whether the appellant had locus standi

Holding

Yes - his name was on the lease, giving him locus standi

Reasoning

The court held that the question of whether the appellant was a registered trust was not an issue in the interlocutory application, and that in any event his name appearing on the lease gave him locus standi unless proved otherwise.

p. 5

Legal principles established

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  • At the interlocutory stage a court should not make final determinations on contested questions of fact and law that form the substance of the main suit
  • Where a lease contains a valid arbitration clause, disputes thereunder should be referred to arbitration and the suit stayed pending arbitration
  • The three Giella conditions for an interlocutory injunction must be surmounted sequentially without leap-frogging
  • Costs follow the event under section 27 of the Civil Procedure Act unless there is good reason to depart

Court orders

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  1. 1.The appeal is allowed and the ruling delivered on 13th September 2024 is set aside and substituted with an order granting the injunction sought in the application dated 21st March 2024
  2. 2.The appellant to continue paying service charge as it becomes due by depositing Kshs.12,000 per month in the escrow account, as ordered in the ruling delivered on 12th February 2025
  3. 3.The dispute between the parties be referred to arbitration pursuant to Clause 3(a)(i) of the sub-lease dated 17th January 2020
  4. 4.Stay of proceedings of the suit pending before the trial court to await the outcome of the arbitration
  5. 5.The costs of this appeal abide the outcome of the arbitration

Authorities

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Legislation

  • Environment and Land Court Act No. 19 of 2011sections 19 & 20
  • Civil Procedure Act, chapter 21 of Laws of Kenyasections 1A & 1B
  • Civil Procedure Act, chapter 21 of Laws of Kenyasection 27
  • Constitution of KenyaArticle 159(2)(c) & (d)
  • Arbitration Actreferenced in Clause 3(a)(i) of the sub-lease

Cases cited (6)

  • Abok James Odera T/A A.J Odera & Associates versus John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Giella versus Casman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Limited Versus Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mbuthia versus Jimba credit Corporation Limited
    (1988) KLR 1
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    [2018] eKLR
On appeal from
Principal Magistrate's Court, Mombasa
MCCC E372 of 2024
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act No. 19 of 2011; sections 19 & 20, sections 1A & 1B of the Civil Procedure Act and Article 159(2)(c) & (d) of the Constitution invoked for referral to arbitration

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, "Al Abeid (As Trustee for and on Behalf of Abeid Awsgar Abeid, Arwa Abeid & Amira Abeid) v Goldstone Apartments Amangement Limited & 2 others (Environment and Land Appeal E008 of 2024) [2025] KEELC 7376 (KLR)", Case Analysis (2025). ELC Appeal from Mombasa MCCC E372 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7376/eng@2025-10-29

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