[2023] KEELC 22525 (KLR)

Langham v Wachira & another (Environment and Land Appeal E010 of 2023) [2023] KEELC 22525 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22525 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Appeal E010 of 2023

EK Makori, J

December 14, 2023

Between

Marion Audrey Ellen Lady Langham

Plaintiff

and

Peter Nderitu Wachira

1st Respondent

Edina Cherotich Nderitu

2nd Respondent

(Being an Appeal from the Order/Ruling of the Hon.J. M Kituku (SPM) in Kilifi SPMCC No. E73 of 2022 delivered on the 8th March 2023)

Ruling

1. This is an appeal from the ruling of Hon. J. M Kituku SPM in an interlocutory application declining to issue an interlocutory injunction pending the hearing and determination of Kilifi SPMCC No. E73 of 2022 which was delivered on 8th March 2023. Several grounds have been outlined in the Memorandum of Appeal:(a)The ruling contravened the conditions of usage as set out in the agreement of sale for the suit property known as Kilifi/Mtondia/ [particulars withheld] dated 22nd November 2021 entered between the parties herein.(b)The trial Magistrate relied on extraneous matters when deciding the Appellant’s application and not on the laid down principles of law.(c)The trial Magistrate did not consider the findings of the site visit where the Court found that the developments being carried out were commercial instead of domestic usage as set in the sale agreement without giving reasons.(d)The trial Magistrate erred in allowing the respondent to continue building on the suit property without any legal basis despite the laid down conditions of usage as spelled out in the agreement of sale.(e)The trial Magistrate failed to consider the appellant’s evidence and pleadings despite raising a prima facie case.(f)The trial Magistrate was injudicious in the exercise of discretion.

2. The appeal was canvassed by way of written submissions.

3. A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and or ruling and arrive at its own independent judgment or ruling on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses firsthand (in this case the observations made by the trial Court during the scene visit). This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited [1968]E.A 268.

4. The appellant averred that she had agreed with the respondents for the sale of the suit property which is located in a gated community in Bofa Kilifi County. The owners were required to abide by a set of conditions that dictated how the houses and developments were to be controlled as well as the height of the perimeter wall surrounding the houses for uniformity and maintenance of community standards.

5. The said conditions were compulsory and the same was usually communicated to any prospective buyers. In this case, the respondents were notified of the conditions as set out in clause 17 of the sale agreement:(i)No boundary wall is to exceed 1. 5 metres in height.(ii)Only single-story buildings- may be constructed or erected.(iii)The property is for private domestic residence only.

6. Instead of adhering to the conditions, the appellant stated that the respondents breached the same and instead built a perimeter wall that exceeded 1. 5 metres. The houses that the respondents were putting up consisted of four bedsitters intended for commercial purposes and not for domestic use. It was submitted by the appellant this was contrary to clause 17 of the sale agreement. The appellant approached the Lower Court for an interlocutory injunction to stop the respondents from further building until the suit was heard and determined. The Court did visit the scene and observed what was going on at the construction site but the application was dismissed hence this appeal.

7. The appellant is of the view that the Court erred in failing to order for stoppage of construction, the Court saw for itself that the building under construction was for commercial purposes and not domestic. It is the appellant’s view that a prima facie case had been established to warrant the injunctive order sought.

8. The appellant further submitted that the violation of the conditions attached to construction around that controlled community amounted to a breach of contract and this appeal therefore should be allowed.

9. The respondents on the other hand are of the contrary view stating that when they commenced building the suit premises, they followed the laid down conditions. There was a deed plan that was being used to guide the construction and clause 17 of the sale agreement was never breached because no evidence was led that the perimeter wall exceeded 1. 5 meters. The trial Court had an opportunity to visit the ground and found that the perimeter wall was the same in height as those of the neighbourhood. There was also no double-storey building under construction. Besides the area or locality is not a gated community as alleged. When the trial Court visited the scene, it found that the houses being put up or in place never adhered to the alleged conditions. At this point too, it was not possible to deduce whether the building under construction was for commercial or domestic purposes.

10. The respondents argued that a prima facie case had not been established to warrant the issuance of an interlocutory injunction. The present appeal therefore should be dismissed with costs.

11. The issue to determine is whether the orders in the current appeal are merited. Whether from the evidence and materials placed before the trial Court merited for issuance of an interlocutory injunction at that stage.

12. It will be significant to note that the main trial has not been undertaken. This appeal challenges a decision to decline the issuance of an interlocutory injunction pending trial. This Court on whether to overturn or uphold the findings of the trial Court based on the exercise of judicial discretion, has to be guided by the principles as laid in the case of Mbogo & Another v Shah [1968] EA, 93 these principles were set out as follows:“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

13. The Lower Court was dealing with the issue of whether it was germane to issue an interlocutory injunction or not at that stage. The Court delved into the principles for an award of temporary injunction as held in the celebrated case of Giella v Cassman Brown & Company Limited [1973] E.A. 360, on the threshold to achieve before the grant of an injunction as follows:“The applicant should satisfy the Court that he has a prima facie case with a probability of success. Secondly, he stands to suffer irreparable loss or injury which cannot be compensated by damages and thirdly, if the Court is in doubt, it should decide on a balance of convenience.”

14. The trial Court proceeded to determine first whether the appellant had established a prima facie case with the probability of success as held in Mrao v First American Bank of Kenya & 2 others [2003] KLR 125 as follows:“A prima facie case in a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation in rebuttal from the latter.”

15. And that the principles stated in the Giella case were to be addressed sequentially as held in Kenya Commercial Finance Company Ltd v Afraha Education Society [2001] 1 EA 86 as cited in Karen Bypass Estate Ltd v Print Avenue and Company Ltd [2014] eKLR:“so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt then the third condition can be addressed”.

16. The trial Court made a finding that an injunction is an equitable relief, considering the evidence adduced in the affidavits by parties, materials, and submissions placed before it, the Court also visited the scene and made its observations. The Court arrived at a finding that clause 17 of the sale agreement as to the conditions before one commenced building within the neighbourhood where the suit property stood had not been violated. The Court significantly observed as follows:“Actually, at the scene, the court noticed other neighbouring buildings are of similar height, if not taller than that of the Defendants.Further, this is not a gated community. The houses are strewn all over. The defendant's house is a stand-alone house, and the applicant's house is not adjacent to that of the Defendant. There is no house near the suit property.On the issue of bedsitters, I confirm the suit property has several rooms which the Defendant told the Court they were for their children and other related domestic use, and not for commercial purposes as alleged.Consequently, and based on the materials placed before the Court, there is no evidence the Defendants are in breach of clause 17 of the sale agreement."

17. I see no reason(s) to interfere or depart from the findings of the trial court in the exercise of its judicial discretion. The Court properly directed itself as to the principles applicable in the issuance of an interlocutory injunction. I cannot fetter its discretion, particularly on the fact that it visited the site and saw for itself what was obtaining on the ground. I cannot impute mala fides in the findings of the Court. At least I have no evidence to do so.

18. The appeal has no merit and it is hereby dismissed with costs. The trial Court is to proceed with the hearing of the main suit on its merits.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 14TH DAY OF DECEMBER 2023. E. K. MAKORIJUDGEIn the Presence of: -Ms. Mwango for the Appellant.In the Absence of: -Mr. Ragira for the Respondent.