Plaintiffs (Landlords) v Defendant (Tenant) – application to set aside ex parte injunction
The bottom line
#A Kenyan tenant lost his injunction, his lease renewal option and relief from forfeiture after missing rent obligations and breaching his lease.
What this practically means
#Executive summary
#Key legal issues
#Scope of interlocutory injunctions in aid of a defendant's position
The injunction bore an appropriate relation to the suit because demolition would have destroyed the defendant's claimed right to exercise the option for a new lease.
The plaintiffs seek possession; the defendant seeks to remain and claims a right to a new six-year lease under clause 4(e). An injunction by a defendant must relate appropriately to the relief claimed in the proceedings. Demolition would have destroyed the opportunity to exercise that right, so the injunction, though imperfectly framed, was within the proper scope of interlocutory relief.
Self-help eviction during pendency of suit
Demolition of premises while the tenant remained in possession with his goods inside was not peaceable eviction or no more force than necessary.
The plaintiffs argued self-help justified the demolition. The court expressed no view on whether self-help is available in Kenya, but held that even if it were, demolishing premises while the defendant and his stock were in occupation could not be described as the minimum necessary force or a peaceable eviction.
Relief from forfeiture under Section 114 Transfer of Property Act
Relief refused in effect: the defendant's conduct (dishonoured cheque, obstruction of distress, denial of breach, tender without interest or costs) made relief unlikely and the discretion would not be exercised in his favour.
Section 114 relief is discretionary. The defendant's cheque was dishonoured; he wrongly prevented levying of distress under clause 2(c); he tendered rent without interest or costs; and he denied breach despite clear evidence. These circumstances made relief from forfeiture improbable, and he was in any event in breach when seeking the renewal option.
Entitlement to new lease under clause 4(e) option
The option was conditional on a written request at least three months before expiry and absence of breach; the alleged September 20, 1979 request was not by registered post, unacknowledged, and made while in breach, so the right was lost.
The lease required a written request at least three months before expiry and no existing breach. The alleged request was not sent by registered post and no receipt obtained. Even if made, it was made while the defendant was in breach of the site value tax covenant. The defendant thus lost the right to the new lease.
Legal principles established
#- An injunction sought by a defendant must bear some appropriate relation to the subject matter of the relief claimed in the proceedings already initiated.
- A lessee in breach of a covenant is unlikely to obtain discretionary relief from forfeiture, particularly where he has dishonoured a cheque, obstructed distress and tendered without interest or costs.
- A lessee's option to a new lease is lost where the written request is made while in breach of covenants and the lease conditions (e.g. registered post/receipt) are not met.
- The court will dispense with service on an ex parte injunction application where urgency and risk of serious damage justify it.
Court orders
#- 1.The ex parte injunction dated February 2, 1980, is discharged and set aside
- 2.An inquiry into damages resulting from the injunction to be held before a Deputy Registrar who will submit findings for further orders
- 3.Refusal of a secured undertaking as to damages
- 4.Defendant to pay plaintiffs' taxed costs of the application to set aside the injunction and costs of and incidental to the injunction
- 5.Refusal of the plaintiffs' application for a permanent injunction under Order XXXIX
- 6.Leave granted to the plaintiffs, in the exercise of the court's inherent power and subject to necessary permissions from the appropriate authorities, to proceed with demolition of the premises without further notice to the defendant and without further application to the court at the expiration of thirty days
- 7.Plaintiffs to pay the defendant's costs of the Order XXXIX application
- Jurisdiction invoked
- Inherent jurisdiction of the High Court and Order XXXIX (interlocutory injunctions); Transfer of Property Act provisions on forfeiture
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiffs (Landlords) v Defendant (Tenant) – application to set aside ex parte injunction", Case Analysis (1980). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.