[2010] KECA 41 (KLR)
The Court found that the applicants had demonstrated an arguable appeal regarding the validity and propriety of the conflicting notices to vacate issued by the respondents. The Court further held that if the injunction was not granted, the applicants risked eviction before the appeal could be heard, which would...
Source-derived case information.
- Citation
- [2010] KECA 41 (KLR)
- Parties
- Applicant: John Gachie Gichimu; Applicant: Pauline Wamaitha Mbugua; Applicant: Jemimah Ndinda Musyoka; Applicant: Damaris Wanjiku Njuguna; Applicant: Caroline Damaris Nduta Kamau; Applicant: Douglas Mutua Muema; Applicant: Judith Adhiambo Migai; Applicant: Peter Odhiambo Oyoo; Applicant: Carol Kiragu; Applicant: Jane Kanyaware; Applicant: Sebastian Mbatha Mbithi; Applicant: Godfrey Owino Otieno; Applicant: Samuel Obote Alango; Applicant: Francis Maina Kamau; Applicant: Robert Njoroge Ngaruiya; Applicant: Fredrick Nyakwaka Arwango; Applicant: Boniface Mutua; Applicant: Dolly Anyango Okeno; Applicant: Rose Achieng Otutu; Applicant: Eunice Wagio Kariuki; Applicant: Magdalene Lucy Wanae; Respondent: Mukua Tutuma; Respondent: Wachira Nderitu, Ngugi & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 123 & 91 of 2010
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- application allowed
- Judges
- J Wakiaga, JW Nyamu
- Legal Topics
- Injunctive Relief, Eviction Proceedings, Controlled Tenancy, Forum Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gachie Gichimu
Applicant
Pauline Wamaitha Mbugua
Applicant
Jemimah Ndinda Musyoka
Applicant
Damaris Wanjiku Njuguna
Applicant
Caroline Damaris Nduta Kamau
Applicant
Douglas Mutua Muema
Applicant
Judith Adhiambo Migai
Applicant
Peter Odhiambo Oyoo
Applicant
Carol Kiragu
Applicant
Jane Kanyaware
Applicant
Sebastian Mbatha Mbithi
Applicant
Godfrey Owino Otieno
Applicant
Samuel Obote Alango
Applicant
Francis Maina Kamau
Applicant
Robert Njoroge Ngaruiya
Applicant
Fredrick Nyakwaka Arwango
Applicant
Boniface Mutua
Applicant
Dolly Anyango Okeno
Applicant
Rose Achieng Otutu
Applicant
Eunice Wagio Kariuki
Applicant
Magdalene Lucy Wanae
Applicant
Mukua Tutuma
Respondent
Wachira Nderitu, Ngugi & Co. Advocates
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the issuance of conflicting notices to vacate by the respondent was valid and lawful.
- 2 Whether the applicants are entitled to a temporary injunction restraining eviction pending appeal.
- 3 Whether the High Court had jurisdiction or the matter should have been referred to the relevant rent tribunal.
Ratio Decidendi
The Court found that the applicants had demonstrated an arguable appeal regarding the validity and propriety of the conflicting notices to vacate issued by the respondents. The Court further held that if the injunction was not granted, the applicants risked eviction before the appeal could be heard, which would render the appeal nugatory if successful. The respondents' argument that the matter should have been referred to the tribunal did not outweigh the applicants' risk of irreparable harm. The Court therefore granted a temporary injunction restraining the respondents from evicting the applicants from the premises pending the hearing and determination of the intended appeal.
Court Disposition
application allowed
Orders
- A temporary injunction is issued restraining the respondents jointly and severally from evicting the applicants from their individual business and residential premises and houses on L.R. No. 209/9692 at Huruma Shopping Centre Nairobi pending the hearing and final determination of the intended appeal.
- Costs of the application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
53 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. 123 & 91 OF 2010
1. JOHN GACHIE GICHIMU
2. PAULINE WAMAITHA MBUGUA
3. JEMIMAH NDINDA MUSYOKA
4. DAMARIS WANJIKU NJUGUNA
5. CAROLINE DAMARIS NDUTA KAMAU
6. DOUGLAS MUTUA MUEMA
7. JUDITH ADHIAMBO MIGAI
8. PETER ODHIAMBO OYOO
9. CAROL KIRAGU
10. JANE KANYAWARE
11. SEBASTIAN MBATHA MBITHI
12. GODFREY OWINO OTIENO
13. SAMUEL OBOTE ALANGO
14. FRANCIS MAINA KAMAU
15. ROBERT NJOROGE NGARUIYA
16. FREDRICK NYAKWAKA ARWANGO
17. BONIFACE MUTUA
18. DOLLY ANYANGO OKENO
19. ROSE ACHIENG OTUTU
20. EUNICE WAGIO KARIUKI
21. MAGDALENE LUCY WANAE………………..…………………..……APPLICANTS
AND
1. MUKUA TUTUMA
2. WACHIRA NDERITU, NGUGI & CO. ADVOCATES...………….......RESPONDENTS
(An application for injunction from the ruling and orders of the High Court of Kenya at Nairobi (Mwera, J.) dated 17th May, 2010
in
H.C.C.C. No. 98 of 2010)
***************
RULING OF THE COURT
This application by notice of motion is made under rules 5(2(b) and 42 of the Court of Appeal Rules. It seeks an order of temporary injunction to issue against the respondents jointly and/or severally to restrain them from evicting the applicants from their individual business and/or residential premises and houses situate on L.R. No. 209/9692 at Huruma Shopping Centre Nairobi pending the final hearing and determination of their intended appeal against the ruling/decision and orders of the superior court in H.C.C.C. (NBI) No. 98 of 2010delivered on 17th day of May, 2010.
The application is based on several grounds set out on the face thereof and also on the supporting affidavit sworn to by Sebastian Mbatha Mbithi the 11th applicant, and filed herein together with the application on 4th June, 2010.
In a suit by the applicants filed in the superior court against the respondents on 22nd February, 2010, the former describe themselves as business or residential tenants of the 1st respondent while the 2nd respondents are the advocates for the said 1st respondent. During the month of January, 2010, the firm of M/s Gachie Mwanza & Company Advocates served a uniform notice upon the applicants dated 28th day of January, 2010 on behalf of the 1st respondent giving them three months’ notice of termination of tenancies, and requiring them to vacate the 1st respondent’s premises on the 15th day of April, 2010. Immediately after service of that notice the applicants were again served with another notice dated 5th day of February, 2010 asking them to vacate the suit premises by 28th February, 2010. The applicants read mischief in the conflicting notices and this led them to file the suit herein as above stated. Together with the filing of the suit the applicants filed an application for temporary injunction to restrain the respondents, their agents and/or servants from evicting the said applicants from the business and residential premises on Plot No. 209/9692 situate at the said shopping centre in Nairobi pending the final hearing and determination of the application and/or the suit. The application was heard by way of written submissions. The ruling thereon was delivered by the superior court (Mwera, J.) on 17th May, 2010, and it is the ruling with which the applicants are aggrieved and which they intend to appeal against, hence the present application.
When the application was placed before us for hearing on 20th July, 2010 Mr. Ogutu, learned counsel for the applicants submitted that though the premises the applicants occupied were controlled, the dispute in respect thereof was not referred to either the Business Rent or Rent Restriction Tribunals as should have been done. He also submitted that since the notices issued by the 1st respondent were illegal the applicants could not react to them and the superior court had no jurisdiction to deal with the matter.
On the nugatory aspect, counsel submitted that unless the order for injunction is issued, the applicants risk being evicted from the premises by the respondents before the appeal is heard. Mr. Ngugi, learned counsel for the respondents opposed the application and argued that the 1st and 2nd applicants were covered by the business premises rent tribunal and should have gone to the right forum instead of filing the suit in court.
For an application of this nature to be granted, the applicants need to demonstrate the requisite two limbs which need to be satisfied under rule 5(2)(b) of this Court’s Rules, firstly, that the intended appeal is arguable and secondly that if the application is refused and the appeal is eventually successful, its result would be rendered nugatory; see Civil Application No. Nai. 328 of 2009 – CFC Financial Services Limited vs Juja Road Fancy Stone Limited.
The applicants’ concern is whether, after the respondents issued them with the notice dated 28th January, 2010 to vacate the suit premises on 15th April, 2010 it was proper or legal for them to issue another notice dated 5th February, 2010 requiring them to vacate the premises by 28th February, 2010 and whether these notices were valid. We feel that given the circumstances of this case, this is an arguable point and that the intended appeal is not frivolous. On the nugatory aspect, we agree that the applicants have a genuine fear that if the order of temporary injunction sought is not granted they stand a risk of being evicted from the premises before the intended appeal is determined. Should this happen and later the intended appeal is successful; its result would be rendered nugatory. The respondents’ argument that the tribunals were the proper forum for the applicants to go to does not weigh against the argument put forth by the applicant above. And whether or not the 2nd respondent was properly joined to the case or application will be determined at the hearing of the intended appeal.
We allow the application and issue a temporary injunction to restrain the respondents jointly and severally from evicting the applicants from their individual business and residential premises and houses on plot known as L.R. No. 209/9692 at Huruma Shopping Centre Nairobi pending the hearing and final determination of their intended appeal. Costs of the application shall abide the outcome of the appeal.
Dated and delivered at Nairobi this 19th day of November 2010
P. N. WAKI
……………………….
JUDGE OF APPEAL
D. K. S. AGANYANYA
……………………….
JUDGE OF APPEAL
J. G. NYAMU
……………………….
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR