[2014] KEHC 1303 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 56 OF 2013

GEOFFREY MAINA MANJAMA………......................PLAINTIFF

VERSUS

SAM MUREITHI MURIOKI T/A UNCLE SAM............DEFENDANT

RULING

The plaintiff has filed a Notice of Motion dated 22nd February, 2013. It is expressed to be brought under Article 159 of the Constitution, Section 6 (1) of the Landlord and Tenants (Shops Hotels and Catering Establishments Act and Sections 1A, 1B, 3A, 63(c) and (e) of the Civil Procedure Act, Order 40 Rule 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules,2010. The plaintiff seeks the following:

That an interim order do issue restoring the plaintiff into possession of Nairobi Block/119/2843 pending hearing and determination of this suit.

That a permanent injunction do issue restraining the defendant by himself and/or his agents, servants and or employees from carrying out any business/leasing and or any other way interfering with the management of Nairobi Block/119/2843 pending hearing and determination of this suit interparties.

An order do issue directed to the defendant to deposit a sum of not less than KShs. 900,000/= to the court and or joint account of the parties/ their advocates, the same being the collection of rent for the months of January and February, 2013.

An order do issue declaring that the lease agreement entered between the plaintiff and the defendant is valid and still in force.

The application is premised on the grounds on the body of the application and the supporting affidavit and further supporting affidavit of the plaintiff sworn on 22nd February, 2013 and 20th March, 2013 respectively. It is the plaintiff’s case that he entered into a five years and 3 months lease agreement with the defendant on 25th June, 2012 in respect to Nairobi Block 119/2843 containing 30 rooms. Hewithin the fourteen (14) days grace period paid the defendant KShs. 1. 6 Million being rent for twenty four (24) months in advance in compliance with clause 1 (iii) and monthly rent remittance were to commence after the lapse of two (2) years as per clause 1 (iv) of the agreement. He took possession of the premises on 1st July, 2012 and heavily invested on accommodation and lodging services. He on the 3rd of August, 2012 received a notice to the lease from the defendant on the basis that he had breached the terms of the lease agreement. He averred that the defendant has re-possessed the premises since 1st January, 2013 and has been collecting monthly rent of KShs. 450,000/= per month. He stated that unless the defendant is retrained from interfering with the premises he will suffer irreparable loss and damage. He also urged the defendant be order to deposit either in court or in a joint account the amount of KShs.900,000/= so far collected from the premises from January to February, 2013. The plaintiff contends that the defendant is the right party to sue since the lease agreement bear a copy of his identification card and photograph.

The defendant opposed the application vide a replying affidavit and a further affidavit 12th March, 2013 and 15th April, 2013 respectively. He denied privity to the lease agreement and contended that the plaintiff voluntarily after receipt of the termination notice moved out of the premises. Further to this he contended that the lease has been overtaken by events. He denied locus in this suit since rent was deposited in the account of Uncle Sam Githurai Limited and not his personal account. It is his contention that the plaintiff is not entitled to refund of KShs. 2,000,000/= since it was goodwill agreed on. He disputed being paid the sum of KShs. 5,775,000/=.

The application was canvassed by way of written submissions which basically reiterate the parties’ averments. I have considered the depositions of the parties together with their submissions. The preliminary issue for this court’s determination is whether the defendant is a legal entity. In law a business name is not a legal entity capable of suing or being sued. I therefore find that Sam Mureithi Muriokihas been correctly sued.

The principles of granting an injunction were spelt out in Giella v. Cassman Brown (1973) EA 358 that an applicant must demonstrate that he/she has a prima facie case with probability of success, he/she stands to suffer irreparable loss unless the orders sought are granted and that in the event of doubts, the court is to decide the matter on a balance of convenience. The court in Habib Bank AG Zurich v. Eugene Marion Yakub Nairobi Civil Application No. 43 of 1982 (UR) defined probability of success as follows:

“Probability of success means the court is only to gauge the strength of the plaintiff’s case and not to adjudge the main suit at the stage since proof is only required at the hearing stage.”

The first prayer in the motion seeks repossession of the premises. Pending hearing and determination of the suit. Since the plaintiff has vacated the premises, that order is mandatory in nature and the court must be sure that the plaintiff would be entitled to that relief when the suit is concluded. To be so sure, the court must delve into merits of the suit. The same position applies to prayer (iii) and (iv). I therefore decline to grant prayer (i) (iii) and (iv) on the basis that they would call for delving into the merits of the suit at an interlocutory stage against the principles of granting injunction orders. (See: Mucuha v. Ripples Limited [1990-1994] EA 388. )

Prayer (ii) seeks permanent restraining orders. Considering the principles set out above, I find that the application has been overtaken by events since the plaintiff is no longer possesses the suit premises. The balance of convenience thus favours the defendant.

The application is accordingly dismissed with costs to the defendant.

Dated, Signed and Delivered in open court this 28thday of November, 2014.

J. K. SERGON

JUDGE

In the presence of:

………………………………………………………….for the Plaintiff

………………………………….................…….for the Defendant