[2023] KEELC 18139 (KLR)
The court declined to grant interim injunctive orders, reasoning that granting such orders at this stage would further convolute the dispute, particularly as the substantive ruling on the applications and preliminary objection is scheduled within a month. The court found that the balance of convenience did not favor...
Source-derived case information.
- Citation
- [2023] KEELC 18139 (KLR)
- Parties
- Plaintiff: ATC Kenya Operations Limited; Defendant: Telkom Kenya Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E157 of 2023
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Interim Injunction; Preliminary Objection Pending
- Outcome
- interim injunction declined; application dismissed at interlocutory stage
- Judges
- LN Mbugua
- Legal Topics
- Lease Disputes, Injunctive Relief, Landlord Tenant Relations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ATC Kenya Operations Limited
Plaintiff
Telkom Kenya Limited
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application for Interim Injunction; Preliminary Objection Pending
Legal Issues
- 1 Whether the plaintiff is entitled to interim injunctive orders to access the leased property pending determination of the suit.
- 2 Whether the suit is sub judice in light of other pending matters between the parties.
Ratio Decidendi
The court declined to grant interim injunctive orders, reasoning that granting such orders at this stage would further convolute the dispute, particularly as the substantive ruling on the applications and preliminary objection is scheduled within a month. The court found that the balance of convenience did not favor the grant of interim relief, and that the proximity of the substantive hearing militated against any interlocutory intervention. The court also acknowledged the respondent's argument on sub judice but deferred substantive determination to the upcoming ruling. Thus, the application for interim orders was rejected to preserve the status quo until the main issues are determined.
Court Disposition
interim injunction declined; application dismissed at interlocutory stage
Orders
- The application for interim injunctive orders is declined.
- No interim orders granted pending the substantive ruling.
Full Case Text
Judgment text and source record
22 paragraphs
ATC Kenya Operations Limited v Telkom Kenya Limited (Environment & Land Miscellaneous Case E157 of 2023) [2023] KEELC 18139 (KLR) (15 June 2023) (Ruling)
Neutral citation: [2023] KEELC 18139 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Miscellaneous Case E157 of 2023
LN Mbugua, J
June 15, 2023
Between
ATC Kenya Operations Limited
Plaintiff
and
Telkom Kenya Limited
Defendant
Ruling
1. This suit was filed contemporaneously with an application dated May 9, 2023. The plaintiff/applicant contends that it entered into various lease agreements with the respondent for its various base transceiver stations throught the country of which the respondent was the landlord of the plaintiff. That even though the applicant has at all material times complied with the terms of the leases, the respondent has denied the applicant’s servants and agents access to various leased sites in breach of the lease agreements.
2. The applicant hence prays for injunction orders against the respondent to be granted unrestricted access to the suit property.
3. In response, the respondent has filed a Preliminary Objection dated May 30, 2023 and an application dated June 2, 2023 where it contends that the suit herein is subjudice; that there exists other matters filed by the plaintiffs against the defendant namely Nairobi HCCC E096 of 2022 and Mombasa ELC 044 of 2023, hence this suit should be dismissed.
4. The prosecution of the Applications and the Preliminary Objection are under way of which the ruling thereof is slated for July 13, 2023.
5. The plaintiff has however sought interim orders in terms of prayer No. 3 in the application. “A temporary order of injunction restraining the respondent from entering….. the property LR. 3734/1402 Muthangari.”
6. At the heart of the dispute is the issue of defendant’s interference with the plaintiff’s right to the suit property. That being the case, granting any orders at this stage will only convolute the dispute further.
7. I decline to grant any interim orders at this stage noting that the date of the substantive ruling is hardly a month away.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kahura for Plaintiffs/ApplicantKyalo holding brief for Nyamburi for defendantCourt assistant: Philis