Haile v Bright Future Private Limited (Environment and Land Case Civil Suit E601 of 2025) [2026] KEELC 3021 (KLR)

5. He deponed that the applicant had come to court with unclean hands failing to disclose that he had failed to pay the full purchase price after the completion date had long lapsed and that despite there being an extension, the applicant had demonstrated unwillingness to perform his part of the agreement. He deponed this action led to the issuance of a completion notice which notice was not adhered to and eventually issuance of a termination of agreement and notice of eviction. He further deponed that the applicant having sated on the suit property for the duration he had been without paying the purchase price, was entitled to have paid rents hence instructing auctioneers to levy for distress of rent. 6. The application was dispensed ofi by way of written submissions with the applicant filing submissions on the 14th April 2026 whereas the Respondent filed its submissions on the 10th March 2026. Applicant’s submissions 7. On the issue of jurisdiction, the applicant indicated that clause 18.3 of the agreement gave room for either parties to seek for injunctive relief from the court despite three being an arbitration clause. That further the issue at hand was not one captured in the arbitration clause to warrant invocation of the same. Further he submitted the respondent was estopped from wanting to invoke clause 18 of the agreement being the arbitration clause they themselves had not invoked as a matter of 1st instance instead chose to engage auctioneers to seize the applicant’s goods 8. Moving on to address the application the applicant submitted that all three limbs of the Giella v Cassman Brown test are satisfied in the present case being proof of prima facie case as in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, that he had established a prima facie case in that there ws no tenancy relationship as between himself and the respondent and hence the respondent could not purport to be a landlord and levy distress for rent and issue eviction notice. That having proved there was no rights established in any tenancy agreement the distress for rent should not be permitted as it would ofiend the provisions of the law under cap 93 the distress for rent Act. 9. On the issue of irreparable harm, he indicated that he resided on the suit property with his wife and children and eviction would cause him to start looking for a new residence which was not guaranteed to be found with very short notice and further disruption of his life and especially to the children who would be forced to change schools afiecting their psychological well being which is something that damages could not compensate. Counsel relied on the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR Lastly, he submitted that the balance of convenience tilted in his favour as the harm occasioned to him in not granting the injunction would be more than the harm occasioned to the respondent in granting the injunction. Respondent’s submissions 10. The respondent reiterated the contents of its replying afidavit indicating the court had no jurisdiction relying on the doctrine of exhaustion. That the applicant was bound to the terms of the agreement 11. On the whether the applicant had satisfied the conditions for issuance of injunctive orders, that he had failed to prove a prima facie case being that had been the party that had defaulted in its obligations having failed to pay the full purchase price despite an extension of the completion period. That having not met the terms of the agreement he cannot come to seek injunctive orders relying on the case of Kyangavo Vs Kenya Commercial Bank Ltd & Another (2004) KEHC 2658(KLR) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3021/eng@2026-05-15 2

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On the second test for irreparable harm, counsel submitted that in Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR irreparable harm ought to be proven which was not the case in this matter as the dispute was commercial and any loss could be compensated by way of damages Lastly, he submitted that the balance of convenience tilted in his favour having proved the applicant to have been in breach of the agreement and his continuous stay in the suit premises without having paid the outstanding balance or rent. Analysis and determination 12. Since the issue of jurisdiction seeks to dispose of the suit this court will determine it first for if it is competent then there is no need to entertain the application and suit It goes without saying that without the requisite jurisdiction a court of law down sits tools meaning that the objection, if successful, is capable of finally disposing the whole matter. In this case the respondent is invoking the doctrine of exhaustion that the agreement provides for alternative dispute resolution which should be the 1st place of seeking confiict resolution and not this court. The applicant however indicates the issues brought to this court fall outside the ambits of the issues to be addressed by arbitration. A perusal through the agreement clause 18.1 reads “Should any dispute arise between the Parties hereto with regard to the interpretation, rights, obligations and/or implementation of any one or more of the provisions of this Agreement, the Parties to such dispute shall in the first instance attempt to resolve such dispute by ... Looking at the application the grounds raised for filing the same is that the respondent has caused to be issued an eviction notice and further instructed auctioneers to levy distress for rent. In my view and in agreement with the applicant this is an issue that is not captured in the clause above and as such since there is the provision in clause 18.3 for either party to seek injunctive orders, this is the right forum to bring the application. In that regard I do hold that this court has the jurisdiction to entertain the application. 13. Moving on to the merits of the application the issue for determination is whether the applicant has satisfied the conditions for issuance of injunctive orders. 14. In deciding whether to grant the injunctive orders or not it is trite law that I should be guided by the well-established principles enunciated in the locus classicus now famous precedent of “Giella Vs Cassman Brown [1973] E.A. Page. 358 whose holding is as follows: - “The condition for the grant of an interlocutory injunction are now, I think well settled in East Africa. i. First, an applicant must show a prima facie case with a probability of success. ii. Secondly an interlocutory injunction will be ne normally granted unless the applicant might otherwise sufier irreparable injury which would not adequately be compensated by an award of damages. iii. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience the issue of prima facie case. The three conditions set out in Giella (supra), need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of:- Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, “These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. If the applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3021/eng@2026-05-15 3

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establishes a prima facie case that alone is not ssuficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in betweenen.’’ The applicant has been accused of failing to complete payment of the purchase price for the respondent to release completion document hence frustrating the completion of the agreement. The applicant on the other hand indicates that his paying of the balance of the purchase price was pegged on communication by the respondent that completion documents are ready which he failed to and also failed to ofier the professional undertaking clause 4.2 titled balance of the purchase price reads; ‘’The balance of the purchase price of the sum of United States Dollars one hundred and seventeen thousand six hundred only (USD 117,600.00) herein referred to as the balance of the purchase price shall be paid by the purchaser upon being notified that the completion documents are ready to the vendors advocates to hold on stakeholder basis in exchange of the completion documents and in any event not later than fourty five days from the date of the agreement’’ The respondent in rebuttal quotes clause 5.3 which reads ‘’On or before completion date and upon payment of the full purchase price as provide in clause 4 above the vendor shall deliver to the purchaser’s advocates the following documents………’ My understanding of clause 4.3 above the completion of the sale was pegged on the obligation of the respondent first. It clearly stipulates that once he has notified the applicant that completion documents are ready then will only then the applicant pay the balance. There is no evidence tendered that the said communication was done to prompt the applicant to pay the balance price. The clause being relied on by the applicant makes reliance on clause 4 of the agreement which falls back to the respondent having to fulfil his part, then the applicant fulfils his part and finally the completion documents released. Having that there is no evidence to show the said communication was ever done. I hold that the respondent was the 1st to breach the terms of the agreement which then led to breach by the applicant of failing to pay within the completion period given probably waiting on the communication from the defendants. I will be bound by the terms of the agreement as courts are not invited to rewrite contracts for parties as established in National Bank of Kenya Ltd Vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR. In this case, the absence of evidence supporting the agreed-upon interest terms prevents the court from imposing such terms retroactively. Without diving into the issue of the tenancy relationship whether any was created, which is a matter to be determined at the hearing of the suit, I therefore hold that the applicant has established a prima facie case On the issue whether the Applicant will sufier irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in in monetary terms or cannot be cured. The applicant is apprehensive that the respondent might attempt to sell ofi the suit property to a third party upon eviction and further the said eviction would afiect the mental state of his family including his children which he claims are harm on a personal level that damages cannot adequately compensate. The applicant has to demonstrate that irreparable injury will be occasioned to her if an order of temporary injunction is not granted. The judicial decision of “Pius Kipchirchir Kogo Vs Frank Kimeli Tenai [2018] eKLR provides an explanation for what is meant by irreparable injury and it states; “Irreparable injury means that the injury must be one that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3021/eng@2026-05-15 4

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cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself suficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” Quite clearly, the Applicant would not be able to be compensated through damages if they are evicted and the property sold to third parties as his rights will be extinguished on the same and recovery of the property would be impossible occasioning harm that money could not cater for. Thirdly, the applicant has to demonstrate that the balance of convenience tilts in his favour I have relied on the decision of Amir Suleiman Vs Amboseli Resort Limited [2004]eKLR where the Learned Judge ofiered further elaboration on what is meant by “balance of convenience” and stated “The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting them, as I wait to hear the suit on its merits. 15. Based on the surrounding facts and the inferences of this case, therefore, I am convinced that if orders of temporary injunction are not granted in this suit, the suit property which is in dispute is in danger of being dealt in the manner set out in the application and apprehended by the applicant.In view of the foregoing, I find that the applicant has met the conditions for grant of orders of temporary injunction. Final disposition 16. That the Notice of motion application dated 27th November 2025 is hereby allowed on the following orders a. That pending hearing and determination of this application inter parties this honourable court do hereby issue temporary injunctive orders restraining the defendant, its servants, agents, employees, or anyone claiming under it from levying distress for rent, evicting, interfering with or in any manner whatsoever disturbing the plaintifi’s possession, occupation, and ownership of Apartment No A16 erected on LR NO 209/21878 Nairobi b. That pending hearing and determination of this suit, this honourable court do hereby issue temporary injunctive orders restraining the defendant, its servants, agents, employees, or anyone claiming under it from levying distress for rent, evicting, interfering with or in any manner whatsoever disturbing the plaintifi’s possession, occupation, and ownership of Apartment No A16 erected on LR NO 209/21878 Nairobi c. That the oficer commanding station (OCS) Kilimani do supervise and ensure compliance with the orders of this honourable court d. Costs will be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF MAY 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Manzi for the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3021/eng@2026-05-15 5

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Ms. Onderi for the Respondent Philomena W . Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3021/eng@2026-05-15 6

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