Gobind Enterprises Limited v Temple (Environment & Land Case E048 of 2022) [2022] KEELC 3095 (KLR)

6. That an order be made compelling the defendant/respondent to ofier the plaintifi/applicant the first option to buy and in the alternative without prejudice to the above if the defendant/ respondent decides not to sell the suit premises known as LR 2x9/6xx8 situated at Hombe/ Juja Road Nairobi an order be made compelling the defendant/respondent to renew the lease between them and the plaintifi/applicant. 7. That OCS Pangani police station does ensure compliance with the afore stated orders. 8. That this Honourable Court be pleased to issue such further orders or directions as it deems fit in the circumstances. 9. Costs be in the cause. 3. The application is supported by the afidavit of Kuldip Singh, one of the directors of the plaintifi/ applicant, sworn on the February 10, 2022 and a further afidavit sworn on the April 1, 2022. 4. The application is opposed. There is a replying afidavit by Amrik Singh Chhaja Singh Singh one of the trustees of the defendant/respondent on the March 2, 2022. 5. On the March 8, 2022, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions. The Plaintifi ’s/Applicant’s submissions 6. They are dated April 4, 2022. The plaintifi/applicant and the defendant/respondent entered into a lease agreement dated November 1, 2016 in respect of the suit premises. The lease was for 5 years 3 months at a monthly rent of Kshs 180,000/- payable on the 1st day of each month. 7. It was also agreed that the plaintifi/applicant through Gobind Enterprises Limited would ran a school known as Guru Nanak Academy on the said premises. On January 14, 2022 the defendant’s/ respondent’s advocates M/S N K Mugo & Company Advocates wrote a letter to the plaintifi/applicant asking them to hand over vacant possession of the premises by January 31, 2022. 8. That under clause 3(h), it was agreed that the lessee shall notify the lessor of their desire to renew the lease at least 10 months before the expiry of the lease term and the lessor and the lessee to reach an agreement of the same at least 6 months before the expiry of the lease term but if such agreement shall not be reached between the lessor and the lessee within the aforesaid period of (6) months, then the lessee shall be entitled to withdraw the notice of its desire to obtain a further lease. 9. The plaintifi/applicant raises three issues for determination:i. Whether the plaintifi/applicant has met the threshold for grant of the orders sought. ii. Whether the plaintifi/applicant’s application dated February 10, 2022 is merited. iii. Whether the plaintifi/applicant has met the threshold for grant of an interlocutory mandatory injunction. 10. The plaintifi submits that the plaintifi/applicant has established a prima facie case. It has put forward the cases of Giella vs Cassman Brown & Co Ltd [1973] EA 358; Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. 11. The defendant/respondent is in breach of the lease agreement dated November 1, 2016 by giving intent to sell the suit property to a third party without giving the plaintifi/applicant the first option to buy as stipulated in the lease agreement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 2

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12. The plaintifi/applicant will sufier irreparable harm if these orders are not granted as it runs a school known as Guru Nanak Academy on the suit premises which has a student population of over 110 students in difierent classes ranging from nursery to high school. The students will be left stranded if the plaintifi/applicant is evicted and the stafi members will be rendered jobless and destitute. 13. The balance of convenience tilts in favour of the plaintifi/applicant as it has not breached the terms of the said lease. It is upto date with the rent payment. It has put forward the cases of Nguruman Ltd vs Jan Bonde Nielsen & 2 Others [2014] Eklr; Njenga vs Njenga [1991] KLR 401. It prays that the orders be granted as plaintifi/applicant has met the threshold for grant of the orders sought. 14. The plaintifi further submits that failure to state order 40 of the Civil Procedure Rules, 2010 is a mere technicality which can easily be remedied as it does not afiect the facts in issue. It has relied in Article 159(2) (d) of the Constitution and the cases of Microsoft Corporation vs Mitusimi Computer Garage Ltd [2001] 2 EA 460; Peeraj General Trading & Contracting Company Limited (Kenya) vs Mumias Sugar Company Limited [2016] e KLR. The defendant/respondent has not shown what prejudice it would sufier by the said omission. 15. The plaintifi/applicant has demonstrated the existence of exceptional circumstances, to warrant the grant of a mandatory injunction. There is a likelihood that the defendant/respondent will sell the suit premises to a third party if these orders are not granted. It prays that the application be allowed. The Defendant’s/Respondent’s Submissions 16. They are dated March 25, 2022. It raises one issue for determination; whether the notice of motion dated February 10, 2022 is merited. 17. The plaintifi/applicant has not invoked the specific provision that is order 40 of the Civil Procedure Rules 2010 but instead invoked the inherent jurisdiction of this honourable court under section 3A of the Civil Procedure Act. It has put forward the case of Julius Ntogaiti Methang’athia & 4 Others vs District Land Adjudication & Settlement Officer Meru North (Nyambene) District & 3 Others [2000] e KLR. 18. It is an express requirement that the suit in which a temporary injunction is sought must be one for restraining the defendant from committing a breach of contract or committing a tort complained of. The plaintifi/applicant’s prayer in the plaint dated February 10, 2022 does not pray for any relief in the nature of a permanent injunction. It has put forward the cases of Sunrise Properties Limited vs Fifty Investments Ltd & Another [2007] e KLR; Haile Selassie Libara Muhalia vs Murang’a Properties Ltd & Another [2007] e KLR. The plaintifi’s/applicant’s application is incompetent as the failure to anchor the interlocutory orders sought in the plaint disentitles the plaintifi/applicant to the reliefs sought in the application. 19. The plaintifi/applicant has not established any right which said right has been infringed. The lease agreement dated November 1, 2016 was terminated by efiuxion of time on January 31, 2022. The present application cannot be sustained in law as there is no legal and/or contractual basis upon which the plaintifi/applicant can continue occupying the suit premises. Clause 3(g), (h) and (i) of the lease agreement was specific on how the lease was renewable and the plaintifi/applicant first right in case of sale. 20. Parties are bound by their agreement. It has put forward the case of National Bank of Kenya vs Pipelastic Samkolit (K) Ltd & Another [2001] e KLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 3

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21. The plaintifi/applicant has failed to make full and frank disclosure of relevant facts to the just determination of the instant application and suit. It is currently in rent arrears which has necessitated recovery proceedings by the defendant/respondent. 22. The plaintifi/applicant has failed to demonstrate that it will sufier irreparable loss if these orders are not granted. The plaintifi/applicant was aware of the expiry of the lease and cannot overstay illegally in the suit premises against the wishes of the defendant/respondent under the cover of the school it runs in the suit premises. 23. The balance of convenience tilts in favour of the defendant/respondent as there is no material placed before this court that the inconvenience caused to the plaintifi/applicant would be greater than that which may be caused to the defendant/respondent. 24. The considerations for granting interlocutory mandatory injunctions is well stated in the cases of Kenya Breweries Ltd & Another vs Washington O. Okeyo [2002] e KLR; Nation Media Group & 2 Others vs John Haron Mwau [2014] e KLR; Shariff Abdi Hassan vs Nadhif Jama Adan [2006] e KLR. The plaintifi/applicant has not demonstrated the existence of any special circumstances. It prays that the prayer for mandatory injunction be disallowed. 25. It prays that the notice of motion dated February 10, 2022 be found to be unmerited and be dismissed with costs to the defendant/respondent. 26. I have considered the notice of motion and the afidavits in support, I have considered the response thereto, the written submission’s and the authorities cited. The issues for determination are:i. Whether the plaintifi’s/applicant’s application meets the threshold for grant of temporary injunction. ii. Has it satisfied the requirements for grant of interlocutory mandatory injunction? iii. Is the application competent before this court. iv. Who should bear costs of this application? 27. In an application for injunction the onus is on the applicant to satisfy the court that it should grant an injunction. The principles were laid down in the precedent setting case of Giella vs Cassman Brown & Co. Ltd [1973] EA 358. In the case of Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 the Court of Appeal stated what amounts to a prima facie case. I am guided by the above authorities. 28. It is the plaintifi’s/applicant’s case that the defendant/respondent has breached the terms of the lease agreement dated November 1, 2016. That under clause 3(g) it was to be given an option to renew the lease for a further period of 5 years 3 months at a new rent to be negotiated between the lessee and the lessor. Secondly, that the plaintifi/applicant was to be given the first option to purchase the suit property under clause 3(h)(i). It is its case that it was shocked to learn through social media that the defendant/respondent intended to sell the suit property to a third party. 29. The defendant/respondent on the other hand states that the lease agreement expired on January 31, 2022 and the plaintifi/applicant has no basis to continue occupying the premises. Further that the plaintifi/applicant has failed to make full and frank disclosure of the facts herein; that it is in rent arrears which necessitated to recovery proceedings by the defendant/respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 4

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30. In paragraph 11 of the afidavit of Amrik Singh Chhaja Singh Singh, one of the trustees of the defendant/respondent he deposes:“ That a material non disclosure by the plaintifi/applicant is the fact that it had initially before the termination of the lease breached the terms of the said lease by falling in rent arrears amounting to Kshs 8,230,000/-. “ In paragraph 12 he deposes; “ That when the defendant/respondent exercised its right to recovery by levying distress for rent against the plaintifi/applicant, the plaintifi/applicant swiftly moved to court vide Milimani CMCC No 3143 of 2019; Gobind Enterprises vs Pritam Singh Pannue & Others being trustees of Siri Gurdwara (Sikh Temple) stopping the said distress. Annexed hereto and marked as ASC-1 are the pleadings in the said Milimani CMCC No 3143 of 2019” I find that the above averments were not controverted by the Plaintifi/Applicant. 31. In paragraph 25 of the further afidavit the plaintifi/applicant’s director states that the plaintifi/ applicant is upto date with the rent. A look at the deposit slips annexed show that they are for Kshs 200,000 in compliance to a consent entered into in Milimani CMCC 3143 of 2019. The Plaintifi/ Applicant has failed to demonstrate that it is upto date in the rent payment. 32. Clause 3(g) of the lease agreement provides that:“ The lessor agrees to give an option to renew the lease to the lessee for further period of five years and three months at a new rent to be negotiated between the lessor and the lessee” Clause 3 (h) provides that:“PROVIDED ALWAYS that the lessee notify the lessor of their desire to renew the lease at least ten (10) months before the expiry of the lease term AND the leassor and the lesee to reach an agreement of the same at least six (6) months before the expiry of the lease term BUT if such agreement shall not be reached between the lessor and the lessee within the aforesaid period six (6) months, then the lessee shall be entitled to withdraw the notice of its desire to obtain a further lease and shall therefore be at liberty to terminate all negotiations with regard to such further lease.” Clause 3(i) provides that:“In case the lessor decide to sell the premises before the expiry of this lease he shall ofier first option to buy to the lessee on mutually agreeable terms and conditions and in case of disagreement the lessor may sell the premises to a third party subject to full protection and validity of the provisions of this lease.” 33. It is the defendant’s/applicant’s case that the plaintifi/applicant knew that clause 3(g) (h) (i) were specific on how the lease was to be renewed and the plaintifi/applicant first right in case of sale. The plaintifi/applicant has failed to demonstrate that it went through the steps as set out in the provisions of the lease agreement. 34. From the foregoing undisputed facts, I find that the plaintifi/applicant has failed to establish a prima facie case with a probability of success at the trial. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 5

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35. It is not in doubt that the lease has since expired. I find that the plaintifi/applicant has failed to demonstrate that it stands to sufier irreparable loss that cannot be compensated by an award of damages if these orders are not granted. In the case of Kenleb Cons Ltd vs New Gatititu Service Station Ltd & Another [1990] KLR 557 Bosire J (as he then was) held that:“ to succeed in an application for injunction an applicant must not only make a frank and full disclosure of all relevant facts to the just determination of the application but must also show that he has a right, legal or equitable, which requires protection by injunction”. 36. I find that the plaintifi/applicant has failed to demonstrate that it deserves this court’s protection. 37. I also find that the balance of convenience tilts in favour of the defendant/respondent who is the owner of the suit premises. 38. The consideration for granting interlocutory mandatory injunction was set out in the case of Kenya breweries Ltd & Another v Washington O. Okeyo [2002] e KLR where the Court of Appeal stated:“ The test whether to grant a mandatory injunction or not is correctly stated in Vol.24 Halsbury’s Laws of England 4th Edition Paragraph 948 which read:‘A mandatory injunction can be granted on an interlocutory application as well as a the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a match on the plaintifis…(a mandatory injunction will be granted on an interlocutory application’. 39. Similarly in Nation Media Group & 2 Others vs John Harun Mwau [2014] e KLR the Court of Appeal held thus:“ It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstance….A difierent standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrated as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases”. Going by the above authorities, I agree with the defendant’s/respondents submissions that the plaintifi/applicant has failed to demonstrate that there exist special circumstances to warrant he court to grant these orders. 40. I note that the notice of motion sought under section 1A, 1B and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya). Order 51 rule 1 of the Civil Procedure Rules the plaintifi/applicant failed to quote the correct provision which is Order 40 of the Civil Procedure Rules, 2010 41. No explanation has been given. The application was drawn by an advocate hence there is no excuse. The plaintifi/applicant cannot hide under Article 159 (2) (d) of the Constitution to ignore specific provision of the Civil Procedure Rules. I find this application to be incompetent. I rely on the case of Sunrise Properties Ltd vs Fifty Investments Ltd & Another [2007] e KLR. 42. In conclusion, I find no merit in this application and the same is dismissed with costs to the defendant/ respondent. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 6

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DATED, SIGNED AND DELIVERED NAIROBI THIS 30TH DAY OF JUNE 2022. ............................. L. KOMINGOI JUDGE In the presence of:-Ms Owora for Mr. Churchill Midwa advocate for the Plaintifi Mr. Ondiek advocate for the Defendant Steve - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3095/eng@2022-06-30 7

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