Bayusuf v Nyale (Environment and Land Case E011 of 2024) [2025] KEELC 6191 (KLR)

v. It is in the interest of justice that this court issues interim protection measures protecting the Plaintifi from the Defendant’s ploy to illegally levy distress condemning him to pay Auctioneers’ and Advocates’ fee as a result of the Defendant’s own doing. 3. Thomas Kiti Nyale [the Defendant] is opposed to the application. In his Replying Afidavit sworn on 25th October 2024, the Defendant avers that vide a lease agreement dated 25th January 2022, he did let his house situated on the suit premises to the Plaintifi for a term of 2 years and 6 months at a monthly rent of Kshs. 160,000/=. 4. The Defendant asserts that the Plaintifi only paid rent for 6 months and that by 30th June 2024 when the term of the tenancy was meant to end, the Plaintifi had accumulated rent arrears in the sum of Kshs. 3,840,000/=. The Defendant further avers that the Plaintifi has failed to move out of the premises and instead filed a reference before the Business Premises Rent Tribunal which was dismissed on 19th May 2023. 5. The Defendant further asserts that the application before the court is re judicata and that the same amounts to an abuse of the court process. 6. I have carefully perused and considered the application by the Plaintifi as well as the response thereto by the Defendant. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties herein. 7. By this application before the court, the Plaintifi prays for a temporary order of injunction barring the Defendant and/or his agents from removing or selling by public auction any of the Plaintifi’s properties in an attempt to levy distress and/or from interfering in any manner whatsoever with the Plaintifi’s occupation and use of the parcel of land known as Mombasa/Block XI/160 pending the hearing and determination of this suit. 8. The conditions for consideration in granting an order of injunction were long settled in the case of Giella v Cassman Brown & Company Limited [1973] EA 358 where the court held thus: “ First, an applicant must establish a prima facie case with probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.” 9. As to what would amount to a prima facie case in a matter such as this, the Court of Appeal ofiered guidance in the case of Mrao Limited v First American Bank of Kenya Limited & 20 Others [2003] eKLR, where the court held as follows: “ A prima facie case in a Civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not suficient to raise issues but the evidence must show an infringement of a right and probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.” 10. In the matter before me, the Plaintifi’s complaint is that the Defendant has made an attempt to auction his properties in an attempt to recover rent arrears amounting to Kshs. 3,840,000/=. The Plaintifi avers https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6191/eng@2025-09-25 2

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that the arrears sought are wrongful, irregular and inaccurate. According to the Plaintifi, he is in arrears for only 8 months and such arrears according to him have been solely occasioned by the Defendant. 11. Further, the Plaintifi complains that there is a deliberate attempt by the Defendant to kick him out of the demised premises for the alleged non-payment of rent to enable the Defendant to lease out the premises to other preferred tenants. 12. From the material presented to the court this far, there was no dispute that the Defendant is the registered owner of the suit property. Vide a lease agreement dated 25th January 2022, the Defendant did let out his building on the suit property to the Plaintifi for a term of two years and six months. 13. According to the Plaintifi, sometimes in October 2022, the leased premises where he conducts a car wash business was destroyed by the Mombasa County Oficials on account of what he terms as the Defendant’s negligence. As a result, the Plaintifi asserts that he was out of business for almost a year and that it was therefore agreed between the Plaintifi and the Defendant that during that year, rent would not be payable until the Plaintifi’s business was up and running. 14. As it were, the Plaintifi has neither disclosed the alleged negligence on the part of the Defendant nor has he displayed the agreement which allowed him not to pay rent until September 2023 when he claims that he was able to kick start his business. His claim that he is only in arrears of rent of 8 months is therefore not backed by any evidence. 15. While the Plaintifi filed this application in September 2024 claiming that the Defendant was using the issue of inaccurate rent arrears to evict him from the suit premises, it was clear from a perusal of clause 2 and 3 of the Lease Agreement that the term had expired in June 2024 and there was therefore no basis upon which the Defendant could be restrained by way of injunction from taking back the premises. 16. In addition, it was clear that in November 2022 when the Defendant demanded arrears of rent then outstanding from the Plaintifi, the Plaintifi instituted BPRT Case No. E264 of 2022 where he sought an order of injunction to restrain the Defendant from evicting him from the suit premises and/or terminating the lease. In a Ruling delivered by the Tribunal on 19th May 2023, the Plaintifi’s application was dismissed and the Defendant was granted leave to proceed to levy distress for rent as he had already begun. 17. There was no evidence that the said orders of the Tribunal had been reviewed and/or set aside on appeal. Accordingly, it was clear that the issues placed before this court by the Plaintifi were res-judicata as the same had been litigated before a competent court which had made a final decision thereon. 18. The import, tenor and scope of the doctrine of res judicata was re-stated by the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [Petition No. 17 of 2015] [2021] KESC 39 [KLR] where the apex court held thus: “ The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of the court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of Judgments by reducing the possibility of inconsistency in Judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6191/eng@2025-09-25 3

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19. Arising from the foregoing, I am persuaded that the Motion dated 16th September 2024 and the suit upon which it is based not only lack merit but are res judicata. Both amount to nothing but an attempt to abuse the process of this court. 20. In the premises I hereby strike out the Motion dated 16th September 2024 as well as the entire suit herein with costs to the Defendant. 21. It is so ordered. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2025 J.O. OLOLA JUDGE In the presence of: Ms. Firdaus Court Assistant. Mr. Kago Advocate for the Plaintifi/Applicant Mr. Lewa Advocate for the Defendant/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6191/eng@2025-09-25 4

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