[2013] KEHC 1640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 61 OF 2013

JANE WANGARI T/A TOP IN TOWN

DRY CLEANERS ………………………………………………… PLAINTIFF

V E R S U S

JAMES MUTONGA MULINGE T/A

CALIFORNIA DREAM HOTEL ………………..………………. DEFENDANT

RULING

The Plaintiff's Notice of Motion dated 24th May 2013 is for an order of injunction to restrain the Defendant from evicting or in any way interfering with the Plaintiff's quite possession of Plot No. Mbsa/XLX/22 pending the hearing and determination of this suit.

The Plaintiff obtained interim exparte injunction on 24th May 2013 and it is alleged by the Defendant which it is not controverted by the Plaintiff that when the said order was extracted and served on the Defendant the Plaintiff did not serve the Defendant with the Summons to enter an appearance. On that basis the Defendants submitted that the Plaintiffs suit was fatally defective.

Order 40 Rule 4(3) of the Civil Procedure Rules, 2010 provides-

“In any case where the Court grants an ex parte injunction the applicant shall within three days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically lapse.” (underlining mine)

From that Rule it is clear that the effect of the Plaintiff's failure to serve the Summons is that the exparte injunction issued on the 24th May 2013 automatically lapsed the Plaintiffs suit therefore is not rendered incompetent by that failure.

The Plaintiff contends by her plaint and in her Motion that she is a protected tenant under The Landlord and Tenant (Shops, Hotels & Catering Establishments) Act Cap 301 by virtue of being a month to month tenancy. In her affidavit in support the Plaintiff deponed that her tenancy expired on 11th May 2013. The Defendant however by his letter to the Plaintiff dated 8th August 2012 suggested that the lease expired on 31st December 2012.

The Defendant denies that the Plaintiff has a month to month tenancy and rather terms her as a trespasser who 'sneaked' rent into his account after the expiry of her tenancy. The Plaintiff did indeed attach a rent deposit into the Defendant's account made on 22nd May 2013 for Kshs. 55,124/-. The Defendant has not refunded that rent and on a prima facie basis the Defendant's acceptance of that rent does indeed seem to suggest that there was created a month to month tenancy. Section 60(2) of The Land Act 2012 so provides. It provides as follows-

“A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.” (underlining mine)

If a month to month tenancy is created then as provided under Section 2(1) of Cap 301 the Plaintiff is a protected tenant. That Section which is the definition Section defines controlled tenancy as 'which has not been reduced into writing' amongst others.

The Defendant as has been shown by the Plaintiff’s exhibits in particular the Defendant's letter dated 8th August 2012 and the Defendant's learned Counsel's letter dated 15th August 2013 which letters threatened to increase rent and or evict the Plaintiff would be contrary to the provisions of Section 4(1) and (2) of Cap 301. That Section in part provides in respect of protected tenancies as follows-

“1. No such tenancy shall terminate or be terminated,

and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.

2. A landlord who wishes to terminate a controlled

tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

It is on the basis of what is stated above that I find the Plaintiff has satisfied the first limb of the principles of granting an injunction as set out in GIELLA -VS- CASSMAN BROWN & CO. LTD (1973) E.A. 358. The Plaintiff has shown a prima facie case with probability of success.

The Plaintiff also deponed and it was not controverted by the Defendant that if forcible eviction is carried out by the Defendant as threatened that her Dry Cleaning Business may be ruined and it may lead to loss of her clients' clothes. There is no doubt that this may lead to loss to the Plaintiff which can be termed as irreparable loss. Even it may be loss that can be quantifiable it may lead to claims by her clients which inturn may lead to Court claims for recovery of their lost clothes. Additionally the damage done to the business and its good will may not be quantifiable.

I am of the view that the Plaintiff’s application is well deserving the

orders sought and I grant the following orders-

An injunction is hereby issued restraining the Defendants, its servants or its agents or anyone acting on its behalf from evicting or interfering with the Plaintiff's quite possession of Plot Mbsa/XLX/22. That injunction shall automatically be vacated if the Plaintiff fails to serve upon the Defendant the Summons and Plaint, list of documents and list of witnesses within 14 days from today's date.

The Plaintiff is granted costs of the Notice of Motion dated 24th May 2013.

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

MARY KASANGO

JUDGE