Jane Wanjiru Nderitu Alias Janet Ndiritu & another v Shima Properties Limited & another [2019] KEELC 149 (KLR)

contract. 3. In a Replying Affidavit sworn by its Managing Director Fabio Muciarelli and filed herein on 20 th February 2019, Shima Properties Ltd (the 1st Defendant/Respondent) admits that it contracted the 2 nd Plaintiff to manage its property as a bed and breakfast establishment. 4. The 1st Defendant however avers that it was an express term of the agreement that the 2 nd Plaintiff was to make payment to the 1 st Defendant but the 2nd Plaintiff has never made any payment since the commencement of the contract. 5. The 1st Defendant asserts that due to the said breach, it issued a termination notice dated 27 th September 2017 to the 2nd Plaintiff but the same went unheeded. In total disregard of the notice the 2 nd Plaintiff allowed its agent and or servant the 1 st Plaintiff to move into the 1st Defendant’s property and set up residence as her home to the further detriment of the 1 st Defendant. 6. I have perused and considered the Plaintiffs’ application and the 1 st Defendant’s response thereto. I have equally considered the oral submissions made before me by the Learned Advocates for the parties. 7. The power to grant an injunction is in the discretion of the Court. This discretion however should be exercised reasonably, judiciously and on sound legal principles. Before granting a temporary injunction such as the one sought herein, the Court must consider the following principles:i) Whether the Applicant has demonstrated a prima facie case with a probability of success; ii) Whether the Applicant is likely to suffer irreparable harm if the injunction is not granted; and iii) If in doubt the Court would consider where the balance of convenience tilts. 8. The existence of a prima facie case in favour of the Plaintiffs is thus necessary before a temporary injunction can be granted. The burden lies on the Plaintiff in such circumstances to satisfy the Court by leading evidence or otherwise as to the existence of a prima facie case. 9. In the matter before me, the Plaintiffs assert that they entered into a Management contract with the 1 st Defendant on 16th February 2016. That contract allowed the 2nd Plaintiff Company to manage the 1st Defendant’s property situated at Fabian House Malindi as a bed and breakfast establishment. 10. According to the Plaintiffs, the said agreement allowed them to run the business for a period of five years and one month with a renewal option. The Plaintiffs accuse the 1st Defendant of breaching the agreement by instructing Mugema Auctioneers(the 2 nd Defendant) to attach their goods at the said premises on the purport that the Plaintiff owed rental arrears of Kshs 450,000/-. It is the Plaintiffs case that there never existed a tenancy agreement between themselves and the 1 st Respondent and that there was therefore no basis for the proclamation made by the Auctioneers on 11th December 2018. 11. While admitting that they entered into the said contract, the 1 st Defendant avers that contrary to the provisions of the said contract, the 2nd Plaintiff has never made any payments due from the time the contract was executed. It is their case that as a result of the said breach they proceeded to terminate the contract on 27th September 2017 but the Plaintiffs have since refused to vacate the premises. 12. I have perused and considered the contract executed by the parties on 16 th February 2016 aforesaid. It is clear to me that the suit premises belong to the 1st Defendant who is described therein as the “Property Owner”. As per Clause 2 thereof the Plaintiffs were meant to operate a bed and breakfast business on the property which consists of ten Rooms. 13. Clause 7 and 8 of the Contract provided as follows:- “7. That Fabio Mucciarelli shall receive 25% out of the income/profit from Les Carmes Ltd and the remaining 75% shall be shared equally between Janet Nderitu and Siro Mucciarelli. 8. That if the contract is terminated or comes to an end the Management of the house shall go back to Shima Properties Ltd. 14. From the Contract as executed, it was apparent that there was some sort of relationship between the 2 nd Plaintiff and the 1st Defendant. This is so because the contract was executed by Siro Muciarelli and Fabio Mucciarelli for the 1 st Defendant. The same Siro Muciarelli and Janet Nderitu (the 1st Plaintiff) also executed the Agreement on behalf of and as Directors of 2 nd Plaintiff Company. 15. Whatever the relationship, it is apparent that the disagreement arose due to the inability of the 2 nd Defendant to make the payment envisaged at Clause 7 of the Contract. Responding to the accusation by the 1 st Defendant that they failed to remit payments, the 1 st Plaintiff avers at Paragraphs 3 and 4 of her Supplementary Affidavit filed herein on 6 th March 2019 as follows:3. That I have read the contents of Paragraph 3 of the Affidavit and I am advised by my Advocate on record which advice I verily believe to be true that it was never an agreed term in the Management Agreement dated 16 th February 2016 that payments will be

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made immediately or at the commencement of the business and that the averments made therein of the Replying Affidavit are false and untrue. 4. That in further response to Paragraph 3 of the Affidavit I wish to state that Clause 7 expressly provides that what is to be shared is only the profit and the business to-date has yet to reach its break-even point since it is yet to make any profits.” 16. As at 6th March 2019 when the 1st Plaintiff swore the Supplementary Affidavit, their Agreement had been in existence for three years. Given her admission that she was yet to make any payments to the owners of the property in which she operates the business and resides, it was obvious to me that the balance of convenience tilts in favour of the 1 st Defendant who is yet to earn a penny from the business deal. 17. As was stated in Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others(2014)eKLR:- “The Party on whom the burden of proving a prima facie case lies must show a clear and unmistaken right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.” 18. In the matter before me, I did not see any right of the Plaintiffs which is about to be infringed. They have not for instance stated that they brought any items or resources into the said property which stand to be wasted or that could be damaged irreparably if the 1 st Defendant is allowed to take back its property. 19. In the circumstances herein, I did not find any merit in the application before me. The same is dismissed with costs to the 1 st Defendant. Dated, signed and delivered at Malindi this 5th day of December, 2019 J.O. OLOLA JUDGE

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