https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3493

Africagest Limited v Jumbo Management Limited (Environment and Land Case E040 of 2026) [2026] KEELC 3493 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3493 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E040 of 2026 FM Njoroge, J June 9, 2026 Between Africagest Limited Plaintiff and Jumbo Management Limited Defendant Ruling Application 1.The Notice of Motion dated 18th March 2026 has come up for determination. The application is seeking the following orders:i.That pending the hearing and determination of the main suit an order be issued restraining the defendant/respondent from further interfering with the plaintiff/ applicant’s quiet possession and enjoyment of the demised premises Twiga Beach Resort located on Land Reference Number Chembe/Kibabamshe/1936 pending the hearing and determination of the main suit;ii.That the OCS Watamu Police Station be directed to ensure compliance with the orders of this court;iii.Costs of this application be provided for.iv.Such further or other orders of this court as it may deem just and expedient in the circumstances. 2.The application is supported by the affidavit of Olaf Steinhoff, also dated 18th March 2026, and is premised on the following grounds, namely: 3.The applicant is a tenant of the respondent at Twiga Beach Resort under a lease agreement dated 1st February 2025 for a term of 5 years; on 16th March 2026, the respondent unilaterally and without notice blocked and sealed off the main gate, the customary entry point for guests and staff and others, thus breaching its statutory and contractual obligation to ensure the applicant's peaceful and quiet enjoyment of the premises; the alternative gate provided by the respondent is unsuitable and the narrow one and it has provided cannot accommodate tour buses and emergency vehicles and is unpaved and lacks essential security features such as CCTV and lighting; that thus, despite having invested substantial sums in the maintenance and renovation of the Resort and despite being a tenant of good standing, the applicant has suffered immediate financial loss, guest cancellations, and reputational damage through negative reviews which cannot be adequately compensated for by damages alone. The Response 4.The defendant filed the sworn affidavit of Hassan Ali Abdallah dated 4th April 2026. He admitted the lease between the parties and further deponed as follows: the applicant was in breach of Clause 4.3 of the lease in that in the first quarter of the year 2025, the applicant made payment of the rent on the 7th May 2025 which was 2 days late, and also that in the first quarter of the Year 2026 the applicant made payment of the rent on the 6th February 2026 which was 1 day late, and attracted a penalty in the sum of 5,568 euros which though invoiced, has never been paid to date; that the applicant has breached Clause 7 of the lease in failing to keep the Resort in good condition and there is urgent need to clean and paint all the common areas including walls chairs and tables in the bar and restaurant; that the applicant has also been in breach of the lease due to the mismanagement of the property such that the good name of the establishment runs the risk of damage; that the entrance and arena to the premises are the so-called “note referenced services” for the guests who insist on different plots other than the one subject of the contract; that notification was given to the applicant to the effect that starting 16th March 2026, the gate to plot number 1935 would be closed and an alternative entrance would be set up at the suit property. It is stated that the defendant is not the registered proprietor of title number 1935. The defendant avers that the prayers sought by the applicant in his application would greatly prejudice the defendant and that the applicant is guilty of material non-disclosure in that the applicant failed to disclose to the court the lease in its entirety; that the applicant failed to disclose to the court that the defendant had vide “note referenced services” to the guest of Twiga Hotel Beach Resort who insist on different plots 1935 and 1937 other than the one mentioned in the contract dated 1st February 2025, agreed that when circumstances render it necessary, suitable alternatives would be provided in locations other than plot number 1935 which would allow normal performance of the activities related to the entrance of buses and other vehicles, and beach bar services; that it is pursuant to that agreement that the applicant was notified that starting Monday 16th March 2026, the gate of plot number 1935 would be closed and an alternative one set up at the suit property. Consequently, the applicant deliberately failed to disclose to the court that the defendant was not the owner of plot number 1935. The defendant averred that the applicant was guilty of violations of the terms of the contract under Clause 18 which may lead to termination of the contract. 5.It is alleged that the applicant made modifications to the kitchen and gas cylinder without authority, and also dismantled the photovoltaic panels and occasioned the defendant a loss of 300,000 euros. The applicant also failed to disclose that on the 23rd May 2025, a demand letter had been delivered by the defendants advocates to the applicant for breach of Clauses 7 and 13 of the lease. In its counterclaim dated 4th April 2026 in the matter, the defendant has sought termination of the lease dated 1st February 2025 for violations of the terms thereof. Supplementary Affidavit of the applicant Dated 17th April 2026. 6.In this affidavit also sworn by Olaf Steinhoff, the deponent, in response to the defendant’s replying affidavit analyzed above, states that it is immaterial whether or not he has a work permit; that the issue in this suit is the blockage of the Resort’s access; that in any event he has a valid pass for up to 24th May 2026, having already paid the work permit renewal fees; that the default for 1 or 2 days in payment of rent for the first quarters of 2025 and 2026 are immaterial factors contractually regulated by the lease agreement, and that in any event, the penalty of 5568 euros is not provided for in the contract and is a separate accounting issue that does not justify or provide the legal answer to the said blocking of the Resort’s access, that the alternative gate and road which the plaintiff has been referred to has yet to be prepared to the required standard, thus defeating the use for hospitality purposes, and it is also not secured by a perimeter wall, thus making it unsafe for hotel guests. The deponent denies neglecting the property or that any equipment is missing or that they are any authorized alterations to the property and that in any event, those happenings, even if they had taken place, are immaterial to the instant application, which is in respect of the barricading of the Resort's main entrance; that the poor state of the property has been occasioned by the dumping of refuse from the adjoining construction project being undertaken by Giraffa Limited, a company affiliated to the defendant herein; that in any event the “note” regarding access required that if the current plots become unavailable the respondent was obligated to prepare suitable alternatives that allow for normal performance of activities related to the entrance of buses and excursion vehicles, and the alternative gate that has been provided is not suitable for such purposes since it is small and located at a rear perimeter wall access and is narrow, unpaved and thus cannot accommodate buses, excursion vehicles or water bowsers, and is therefore unfit for the standards required by the parties' agreement; that there is no material non-disclosure because plot number 1935 was never a factor in the agreement because the respondent had guaranteed access through it for the duration of the contract; that in any event the owners of plot numbers 1935, 1936 and 1937 are related and share the management and the decision makers and interest. Copies of official searches and CR 12s of two companies are attached in support of the last allegation. 7.The applicant filed submissions dated 17th April 2026 while the respondent filed submissions dated 27th April 2026. This court has considered those submissions in the preparation of this ruling. Analysis And Determination. 8.The sole issue arising for determination in the present application is whether pending the hearing and determination of the main suit an order ought to be issued, restraining the defendant respondent from further interfering with the plaintiff/ applicant’s quiet possession and enjoyment of the demised premises Twiga Beach Resort located on Land Reference Number Chembe/Kibabamshe/1936. 9.The principles for the grant of a temporary injunction are well established. They are that the applicant must establish a prima facie case and that he runs the risk of irreparable loss that can not be compensable by way of damages if the orders sought are not granted. See the case of Giella Vs Cassman Brown 1973 EA 358. 10.There is no doubt that the parties willingly entered into a contract to enable the plaintiff run for profit a business enterprise by the name Twiga Beach Resort located on Land Reference Number Chembe/Kibabamshe/1936 and at the time the parties were contracting the main entrance to the Resort was, and still is, through plot no 1935 although it was indicated through a separate agreement that an alternative entrance would be provided if for any reason the said main entrance on Plot No 1935 was not available. 11.The plaintiff’s grievance is that though there is an alternative entrance gate and route provided, the same does not befit the hospitality industry of the class the plaintiff operates on the Resort due to lack of certain facilities that ought to be naturally attached to it, including security facilities and access control mechanisms for the guests. Besides, the gate is narrow and precludes access for larger vehicles including tour buses, airport transfer coaches, delivery trucks and emergency service vehicles. Besides, the said alternative entrance is located at the rear perimeter wall of the premises and after the guests have been dropped off, they are required to walk quite a lengthy distance through service areas, unpaved pathways and utility zones in order to get to the normal drop off zone accessible from the main entrance; that it is thus unsuitable for such a business. It is stated that the change of entrance has severely disrupted the business of the plaintiff who had bookings as well as guests residing on the premises. Accessing a high-class tourist establishment only through what may be regarded as a backdoor may require much explanation even to the clients, and the extent to which the closure of the said access should be allowed while the lease is in subsistence without adversely affecting the plaintiff’s business will be the subject of the main hearing. There is a claim that the Resort and the guests have been exposed to unauthorized entry, thefts and general criminal activity. Obviously, these events are likely to happen in any place where there are no security features. In this court’s view, the apparent impediments to the smooth and presentable and dignified accessibility to the applicant’s tourist establishment which have been described by the applicant, have not been adequately explained by the respondent. The applicant has also complained about interference with the leased premises by the defendant; it has said that there are concerns regarding the placing of the defendant’s agents at the main gate to determine who may or may not access the premises which are already let to the plaintiff. In this court’s view, it is a triable issue as to how much interference is permissible under the lease without unduly inconveniencing the applicant’s business; also, the matters that the respondent raises regarding the allegedly fatal breaches of the lease terms can not be dismissed but they can only be reserved for the time of hearing and determination of its counterclaim, which is already on the record. The court thus opines that the plaintiff has established that it has a prima facie case. 12.The second question to be addressed is whether there is risk of loss that can not be compensated by way of damages. In this regard the plaintiff states that there were already some clients booked into the Resort as at the time of the barricading of the main entrance; that there are bookings from international tour operators and scheduled arrivals; that the failure to collect garbage will occasion hygiene concerns in terms of smell since the waste collection truck can not access the rear of the premises, and non-collection of waste will pose a health hazard. It is also urged that the difficulties in providing water, which is said to be usually supplied from near the main gate, may also pose an additional hygiene problem. Without more this court is of the view that in the upmarket hospitality industry which heavily relies on strict hygiene standards and word-of-mouth referrals and recommendations and castigations, the plaintiff’s concerns about potential reputational damage regarding the Resort are not unfounded, and this court is convinced that there is risk of irreparable loss that can not be compensated by damages. 13.Concerning the balance of convenience, I think the defendant has failed to demonstrate any prejudice that it would suffer if the main entrance were to remain open and under the control of the plaintiff’s agents. Consequently, even if the matters herein were placed on the scales, the balance would, in the consideration of this court, tilt in favour of granting the order of injunction sought. 14.This court this finds that the application dated has merit and grants it in terms of prayers nos (v) and (vi). The costs of the application shall be in the cause. Parties shall file and serve their witness statements and lists and trial bundles duly indexed and paginated and the matter shall be listed for mention on 30th September 2026 for issuance of a hearing date. 15.Be that as it may, this court has noted willingness on the part of the defendant to let and the willingness on the part of the plaintiff to be a lessee; the principal aim of both parties was commercial: the defendant would obtain some rent and the plaintiff would get some profits for its labour on the premises. It would appear there are some slight and resolvable issues that are getting into the way of the parties which, if addressed amicably, would result in no loss for any party. This court thus enjoins the two parties herein to have a meeting and examine what is truly essential for their respective purposes on Plot Nos 1935, 1936 and 1937 and which can be carried on without prejudice to the other’s interest with a view to amicable co-existence during the lease period. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 9TH JUNE 2026.MWANGI NJOROGEJUDGE,ELC MALINDI.