[2013] KEHC 1615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE NO. 250 OF 2008

IYALE ACADEMY ………………………………. PLAINTIFF/RESPONDENT

V E R S U S

1. JIM MUGAMBO MBUGUA ……………… 1ST DEFENDANT/APPLICANT

2. JAMES N. MBUGUA ………………………2ND DEFENDANT/APPLICANT

3. JOHN KARUMBA CHEGE (sued as officials of the

Gospel Disciples Society) ………………..……… 3RD DEFENDANT/APPLICANT

RULING

This suit is filed by Iyale Academy. As the name of the Plaintiff suggests is a School. The suit is filed against the named officials of the Gospel Disciples Society. The Plaintiff had a tenancy agreement with the Defendants for a period of 20 years from 1992 over Plot No. GK2/1551 (the premises). This property is at Mikindani, Mombasa. By this action the Plaintiff seeks judgment by declaration that the rental payments made by it was in full settlement of the rental due to the Defendants and for an order for damages for unlawful distress for rent.

The Plaintiff by Chamber Summons dated 18th September 2008 sought an injunction to restrain the Defendants from distressing for rent. At the first instance on the 19th September 2008 the Court granted interim orders of injunction. That hearing was exparte. By consent of the parties of 8th July 2009 the interim orders were extended until the next hearing date.

The subsistence of the injunction orders continued until the Defendant filed a Notice of Motion dated 8th July 2011 seeking to discharge those orders. This Court by its Ruling dated 28th October 2011 declined to discharge the orders and instead ordered the parties to complete pretrial procedure in readiness of the full hearing of this suit.

The Defendant has filed a Notice of Motion dated 28th September 2013 seeking an injunction order against the Plaintiff to stop the Plaintiff from damaging, wasting or alienating or changing the character of the premises. That Motion is the subject of this Ruling.

According to the Defendant the Plaintiff as at 20th September 2013 was seen having a bulldozer on the premises and was carrying out some work thereon. The Defendant attached to its application pictures showing the bull dozer on the ground.

The Defendant through the 2nd Defendant's affidavit deponed that the work being carried out by the Plaintiff was being done without the Defendant's permission. It was deponed that the Plaintiff has remained in possession of the premises beyond the lease period on the strength of the interim orders that are still subsistence upto date. The Defendant termed the Plaintiffs action as abusive of the interim orders of injunction. The Defendants in their affidavits stated-

“21. The Plaintiff is now abusing the interim orders

granted on 19th September, 2008 as well as this suit to perpetuate its unlawful and illegal stay at the suit premises rent free and waste or damage the suit premises by digging or excavating the property.

As a Tenant whose lease expired on 31st December, 2011 the Plaintiff has no right to remain in occupation or carry out grading, excavations, constructions or any other activities on the suit premises.

it is only fair and in the interest of justice that the Plaintiff be restrained from the activities its carrying out at the premises.

The IYALE SECONDARY SCHOOL that was started by the Plaintiff at the suit premises ceased operations in November, 2012 and the last students left on or about November, 2012. Since then our property remains unoccupied as a school but the Plaintiff refused to hand over vacant possession.

As the Plaintiff no longer has any grounds for remaining in occupation, I verily believe that the Defendants have demonstrated that the Plaintiffs activities can only amount to wasting and or degrading and or damaging the suit premises.

The Plaintiff owes the Defendants rent arrears of Kshs. 1,680,000/- and mesne profits at the rate of Kshs. 60,000/- per month with effect from 1st January, 2012 until the Plaintiff vacates which as at September, 2013 stood at Kshs. 1,260,000/-. In total the Plaintiff owes the Defendants Kshs. 2,940,000/- as at September, 2013 which continues to accrue.

With the closure of the Secondary School, the Plaintiff may never be able to pay the Defendants the amounts claimed, let alone compensate the Defendants for the degradation and wasting of the premises.”

The Plaintiff opposed the application and in what I would term as a bomb shell stated thus-

“4. THAT I wish to state that the allegations made in

the application under reply are untrue, the position being that IYALE Academy is not carrying out on the suit land any activities as alleged.

THAT however, my wife and I run a Primary

School nearby, Iyale Mikindani Junior Academy (“the Junior Academy”) of which the other proprietors in Iyale Academy have absolutely no interest.

THAT owing to the need to expand especially as the

said Junior Academy occupies small ground, we have entered into a tenancy agreement with the Trustees of Gospel Disciples Society under which we have been granted a tenure of fifteen (15) years to operate on the premises. Annexed hereto as PM-1 and PM-2 respectively are copies of the relevant trust deed and tenancy agreement, which documents speak for themselves.

8. THAT further, I verily believe that the injunction now

sought by the Defendants (applicants) is based on a false premise, as Iyale Academy is not engaged in any activity on the suit property, certainly not of the nature alleged.

THAT I verily believe that to the extent that any activity

on the land is being undertaken with the authority or sanction of the persons lawfully empowered to deal with the Society’s property, then the application filed herein is steeped in bad faith.”

It would seem that same officials of Gospel Disciples have granted to another entity a lease over the premises for a term of 15 years.

As I consider this matter it is not clear to me whether Gospel Disciples Society is one and the same as Gospel Society Trust. I suspect not. If not who then is the registered owner of the premises? The other issue not clear is which is the party who is now in possession of the premises?

What is clear is that this case needs to be fast tracked because any further delay would lead one indeed to say justice delayed is justice denied. It is alleged that the Plaintiff after the expiry of its 20th year lease which ended at the end of the year 2011 continued to occupy the premises and occupies todate free of rent. The Plaintiff did not controvert that allegation.

What is also clear to the Court is that even if there is a change of the

party in possession of the premises, there is one person in common to those who are alleged to be in occupation. That person is Paul Msabaa. He and his wife Victoria Msabaa seem to have signed the lease with the Gospel Society Trust. In my view in the interest of justice it is to Paul Msabaa that the injunction order should be directed. The Court will hold the said Msabaa responsible personally if the character of the premises is in any way changed from the date when this injunction is granted hereof.

In reference to the finding that Paul Msabaa should be held

responsible I will invoke the equity maxim that equity will not suffer a wrong to be without a remedy. The principle behind this maxim is that equity will intervene to protect a right which perhaps because of some technical defects is not enforceable at law. In this regard I make reference to the book MODERN EQUITY by Hanburys Martin 15th Edition.

I grant the following orders-

An injunction is hereby issued restraining PAUL MSABAA his servants and agents or anyone acting on his behalf from carrying out any construction or changing the character of the property GK2/1551 Mikindani/Chaani or any structure on that land until the final determination of this suit or until further orders of this Court.

The parties in this suit are hereby ordered to file and serve each other with all the documents and witness statements they intend to rely upon in this matter within 14 days from this date hereof. Any document or statements not so filed and served shall not be relied upon at the hearing without the leave of the Court.

At the reading of this Ruling a hearing date of this case shall be fixed.

Costs of the Notice of Motion dated 25th September 2013 shall be in the cause.

Dated and delivered at Mombasa this 1st day of November, 2013.

MARY KASANGO

JUDGE