[2010] KEHC 2179 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the defendant's uncontroverted affidavit evidence showed she only undertook repairs and not new construction. There was no evidence of ongoing construction or placing of tenants without consent. The court held...
Source-derived case information.
- Citation
- [2010] KEHC 2179 (KLR)
- Parties
- Plaintiff: Hasham Lalji Properties Ltd; Defendant: Veronica Wangoi Karaho
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Landlord Tenant Disputes, Injunctive Relief, Prima Facie Case, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hasham Lalji Properties Ltd
Plaintiff
Veronica Wangoi Karaho
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from constructing or placing tenants on the suit property.
- 2 Whether the plaintiff is entitled to a mandatory injunction directing the defendant to demolish structures erected on the suit property.
- 3 Whether the defendant has undertaken construction or only repairs as a tenant without landlord's consent.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the defendant's uncontroverted affidavit evidence showed she only undertook repairs and not new construction. There was no evidence of ongoing construction or placing of tenants without consent. The court held that any harm suffered by the plaintiff could be adequately compensated by damages, and the balance of convenience favored the defendant, who was up to date with rent and in occupation. The dispute was characterized as a landlord-tenant disagreement, not an ownership or construction issue, and the application for injunction lacked merit.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for temporary and mandatory injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 69 of 2010
HASHAM LALJI PROPERTIES LTD …………………………….. PLAINTIFF
-VERSUS-
VERONICA WANGOI KARAHO……………………DEFENDANT
RULING.
Simultaneously with the Plaint dated 12th May 2010 and filed in court on the 13th May 2010 the plaintiff/applicant took out a notice of Motion stated to be brought under the provisions of S.3A of the Civil Procedure Act and orders XXXIX Rules 1,2 and 9 and L rule 1 of the Civil Procedure Rules.That application was brought under a certificate of urgency.The prayers sought a temporary injunction restraining the defendant respondent from continuing with the construction of any building and/or structures and/or putting any tenants in any building/structure constructed by her on the plaintiff’s land parcel number Eldoret Municipality Block 6/64 and a mandatory injunction directing the defendant to demolish all the buildings and structures she erected on the said parcel of land belonging to the plaintiff.The grounds in support of the application are, in the main, that the plaintiff is the landlord and the defendant is the tenant in the suit land who has no consent from the landlord to erect any buildings or structures, thereon.The affidavit in support of the application is sworn by one Stephen Ndalo described as the administrator of the plaintiff which affidavit repeats on oath the grounds which the application is based on and the averments in the plaint.
In reply and opposition to the application the defendant/respondent swore an affidavit that she is not undertaking any construction whatsoever on the plaintiff’s land and she knows well enough that she is a mere tenant who has never pretended to be owner of the suit land.Further she adds that the real issue is not really ownership of the suit land or any construction going on thereon as there is no such construction but that the landlord plaintiff is intend on evicting the defendant tenant by all means possible and there are previous court proceedings in this court for eviction and also before the Business Premises Rent Tribunal between these two parties herein.The respondent swore that all she did was to undertake repairs of the existing premises at her cost as the plaintiff/applicant flatly refused to do that.Submissions by both Counsel herein appearing for their respective clients were reiterating the above.
For the plaintiff to succeed it must show that he has a prima facie case with a probability of success at trial.That it will suffer irreparable damages not capable of being compensated by an award of damages and that the balance of convenience lies with him.Those are the basic guiding principles for the Grant of a temporary injunction.
I have carefully perused all the pleadings herein and considered the rival submissions by both counsel.There was no supplementary or further affidavit filed to controvert what was stated in the respondent’s Replying Affidavit.There was no submission to deny and/or controvert the same.The averments therein as to repairs and existing sub –tenant then must be taken as true.It appears then quite clearly that what is happening herein is a landlord – tenant disagreement that has absolutely nothing to do with the ownership of the suit land and/or any new constructions said to be undertaken by the Respondent.In these circumstances I do not find that the plaintiff/Applicant has made out a prima facie case with a probability of success at the hearing of the same.And nothing being done by the respondent is incapable of not being adequately compensated by an award of damages.The balance of convenience lies with the tenant who is up to date with the rent payment and who is in occupation.I would respectively suggest that the real issues between the parties herein be resolved at the right forum.This application lacks merit and I dismiss it with costs.
It is accordingly so ordered
DATED SIGNED AND DELIVERED AT ELDORET THIS 21ST DAY OF JULY, 201
P.M. MWILU
JUDGE.
In the presence of
Gicheru Advocate for plaintiff / Applicant
Achach Advocate for Defendant/ Respondent
Paul Ekitela – C/C
P.M. MWILU.
JUDGE.