[2013] KEHC 1703 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

COMMERCIAL CASE NO. 98 OF 2013

JAMES TITUS KISIA ……………………………….………….. PLAINTIFF

V E R S U S

SAID MAJID SAID …………………………….…………….. DEFENDANT

RULING

Although by his plaint the Plaintiff seeks prayers for permanent injunction to restrain the Defendant from carrying alterations of the shop leased to the Defendant on Msa/Block XVII/450 (the Property); prayer for vacant possession of that property and a claim for Kshs. 543,200/- being estimated damages of repairs allegedly carried out by the Defendant the only issued presently before me is the prayer of interlocutory injunction contained in the Notice of Motion dated 8th August, 2013.

The Plaintiff seeks to restrain the Defendant from carrying out any alteration, renovation, maiming or demolition of the property.

The Defendant was a tenant of the Plaintiff in the year 2010 when he obtained a lease of one shop on the property. He leased that shop for the purpose of having a booking office for his public service business which is ran under the name and style Dream Line. When that shop was leased to him he found that it needed alteration to meet the needs of a booking office for public service vehicle. The previous tenants of that shop were selling tyres. The Defendant embarked according to his replying affidavit in the alteration of that shop to provide storage facilities and counters. That alteration was carried out with the consent of the Plaintiff.

An adjacent shop which was being ran as a book shop subsequently became vacant and with the consent of the Plaintiff was leased to the Defendant to expand his public service vehicle business. When the owners of the bookshop vacated that shop according to the Defendant they did not carry out any repairs or renovations. The Defendant deponed that he removed the bookshelves and other alterations. He further deponed in respect of the second shop-

“7. THAT at the instance of execution of the Lease for the demised suit premises I specifically brought to the attention of the Plaintiff and Mr. Mulwa, Advocate, that I was intend on proceedings to carry out renovations and alterations to the demised suit premises to accord to the same state and condition as that of the other adjacent demised premises under my possession and it was agreed that there was absolutely no need to seek for a written approval in that regard. I annex hereto and mark as “SMS-2” a Photostat copy of my Advocates’ letter dated 5th August, 2013 addressed to M/s Mulwa Nduya & Company Advocates to attest to the foregoing facts.

THAT I have since completed the renovations and the desired alterations to the demised suit premises and the premises are currently under use as a booking office. I annex hereto and mark as “SMS-3” photographs to attest to the operationalized demised suit premises.

THAT the renovations and the alterations undertaken in the demised suit premises did not in any material manner whatsoever compromise the structural design and/or the architectural strength of the demised premises and/or of the building in which the premises are comprised in.

THAT I am well aware that subsequent to the execution of the Lease there were various third parties that were interested in the demised suit premises when the same fell vacant and made offers to the Plaintiff of willingness to pay more amount in good will and for the monthly rentals sums than I had paid and was paying and that prompted the Plaintiff to attempt to renegotiate the terms of the Lease with me and of which I completely declined to his utter frustration.

THAT the allegations in the Plaintiff’s affidavits are actuated by less than bonafide intentions on his part to address the alleged breach of the terms of the Lease but are rather informed by an ill-conceived motive to summarily terminate the Lease and offer the demised suit premises to other third parties for higher premiums in good will and rentals to be payable therefore.

THAT with the renovations of and alterations to the demised suit premises having been fully undertaken and completed the Plaintiff has absolutely suffered no damage whatsoever and the application is in the circumstances ill-conceived and spent.”

The Plaintiff alleged that the Defendant undertook alterations and demolition in that shop which was a bookshop without lawful authority or written consent contrary to Section 67(1) (e) of the Lands Act 2012. That Subsection provides the implied conditions on the part of the lessee. That Section provides-

“67(1) On and after the commencement of this Act, a covenant by the lessee not to take an action without the consent of the lessor shall be construed as requiring the lessor not unreasonably to withhold consent to the taking of that action by lessee.

(2) If a lessee applies to the lessor for consent to-

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extend, improve, add on to or in nay other way develop any building beyond what is permitted in the lease.

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the lessor shall inform the lessee, in writing, within a reasonable time after receiving the application, whether the lessor is giving or refusing consent.”

The Plaintiff also filed a Quantity Surveyors Report made by Nyange & Associates Quantity Surveyors. That Surveyors report shows that the Surveyors visited the property on 13th August 2013 and the following is what they observed-

“The storage room wall was demolished to a height of 300mm from ground level in both rooms.

The wall separating the two rooms was partly demolished to create an opening.

Some walls had painted plaster hacked off.

Painted plaster on the ceilings was hacked off.

A new storage room wall was built to ceiling height on a different position from the original.

Fresh plaster and paint was applied on the new wall, to adjacent walls and to the new storage room walls. Some of the plaster was still wet, indicating that it was applied about a day prior to the inspection.

Some electrical installations were removed namely; sockets, switches, conduits, lighting fixtures and wiring.

There was a lot of debris on the floor and some packed in cement bags for removal.”

The position on the ground as at the date of hearing the Plaintiff's Motion was that the Defendant had carried out repairs or alterations to the property to completion. The Defendant's contention to that fact was not controverted to the Plaintiff. It would follow that to grant the injunction sought by the Plaintiff would be granting it in vain. The Courts have time and time again stated that orders would not be granted in vain. The Court of Appeal in the case ERIC V. J. MAKOKHA & OTHERS -VS- LAWRENCE SAGINI & OTHERS CIVIL APPLICATION NO. NAI. 20 OF 1994 (12/94 UR) stated-

“There is one other reason on which the order of injunction granted in that case could be questioned. An application for injunction under Rule 5(2)(b) is an invocation of the equitable jurisdiction of the Court. So its grant must be made on principles established by equity. One of it is represented by the maxim that equity would not grant its remedy if such order will be in vain. As is said, “Equity, like nature, will do nothing in vain. On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the Court will decline to grant it.”

The Court of Appeal in the above case quoted a Court of Appeal for East Africa decision that is ROSSLYN ESTATE LTD -VS- UNDERWORD 22 EALR PAGE 196 where Briggs J.A held a remedy sought could not be effective then stated-

“This being a suit in equity, the relief which the Court could grant had to be considered on the basis of the facts as they were at the date of judgment, not as they were at the date of the filing of the plaint.”

The latter case is pertinent to the present application. When the Motion was filed the Defendant seemed to have been carrying out some work within the shop that had been leased by the Plaintiff. When however the Motion came for interpartes hearing on 10th September 2013 there were no repairs or works that were taking place.

It is for that reason that I grant the following orders-

The Notice of Motion dated 8th August 2013 is hereby dismissed.

The costs thereof shall be in the cause.

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

MARY KASANGO

JUDGE