https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5176

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELC APPEAL NO E117 OF 2026** **SAFIA AHMED MOHAMED……………..………..….…………….………..APPELLANT** **VERSUS** **TAHA HAMOOD ALI …………………………………………….………. RESPONDENT** **RULING:** **Introduction** 1. The matter is coming up for determination of the Applicant/Appellant’s Notice of motion application dated 12th June 2026 seeking the following orders; 2. Spent 3. **THAT** Pending the hearing and determination of this application inter parties the court be pleased to issue a temporary injunction restraining the Respondent whether by himself, his agents, servants, employees or any person acting under his authority from evicting the Applicant from shop no 33 Sharif Building, locking the premises, removing the Applicant’s goods, disconnecting utilities, interfering with the Applicant’s quiet possession and occupation thereof or in any manner whatsoever interfering with the Applicant’s tenancy. 4. **THAT** Pending the hearing and determination of this appeal the court be pleased to issue a temporary injunction restraining the Respondent whether by himself, his agents, servants, employees or any person acting under his authority from evicting the Applicant from shop no 33 Sharif Building, locking the premises, removing the Applicant’s goods, disconnecting utilities, interfering with the Applicant’s quiet possession and occupation thereof or in any manner whatsoever interfering with the Applicant’s tenancy 5. The Officer Commanding Station, Eastleigh Police station, be directed to give the Applicant all necessary assistance to enforce the orders of this Honourable Court. 6. Any other reliefs the court may deem fit. 7. That the costs of the application be in the appeal 8. The Application is supported by the annexed affidavit of the Applicant who deponed that she was dissatisfied with the ruling of the BPRT and has since filed a Memorandum of Appeal and that the Respondent might proceed with the execution of the orders issued on 5th June 2026 which will cause her irreparable harm since she has invested goodwill and carried out renovations to the premises and is apprehensive that unless the orders are granted the intended appeal will be rendered nugatory. 9. That the memorandum of appeal filed raised arguable grounds for appeal. 10. The Respondent opposed the application in a replying affidavit sworn on the 22nd June 2026. He deponed that the issues raised in the memorandum of appeal did not raise any arguable grounds being that the ruling by the tribunal dismissed the Applicant’s reference based on the fact that she had failed to comply with **Section 6(1)** of the Landlord and tenants (shops, hotels and catering establishment) Act cap 301 and thereby gave effect to the termination notice that had been issued on the 22nd January 2026. 11. He deponed that the Applicant had not, met the conditions for issuance of injunctive orders being proof of a prima facie case, irreparable harm that cannot be compensated by damages and failed to proof the balance of convenience tilted in her favour. 12. The Applicant filed a further affidavit where she indicated the appeal was challenging the dismissal of her complaint in the tribunal based on her failure to respond to the termination notice and failed to consider the issues raised constant harassment by the Respondent hence the appeal sought to preserve status quo since she is in possession of the premises and suffer possible eviction 13. The application was canvassed by way of written submissions with the Applicant filing submissions dated 2nd April 2026 whereas the Respondent filed submissions dated 23rd June 2026. Applicant/Appellant’s submissions 1. The Appellant submitted that her appeal raised arguable grounds challenging the decision of the tribunal that her complaint was incompetent for want of a reference under **Section 6 of cap 301**. That if the eviction occurs her business will automatically be halted, her assets exposed to loss, loss of goodwill which will render the appeal nugatory as the core of it was challenging the dismissal of her complaint which challenged the termination notice. 1. She submitted that she had demonstrated loss to be incurred and the balance of convenience tilted in preserving status quo as she was currently in occupation and still paying rent and hence the Respondent would not be prejudiced in any way. Respondents ‘submissions 1. Counsel submitted that the Applicant needed to have met the conditions for issuance of injunctive orders as in **Giella Vs Cassman Brown & Co Ltd. (1973).** The 1st requirement was proof of prima facie case which he submitted had not been met being that the tenancy had been terminated, the rights of the Applicant had been extinguished and there was no right capable of being preserved by an injunction and that the mere occupation of the premises did not confer legal rights after the tenancy has terminated. 1. On the issue of irreparable harm, the Respondent submitted that the Applicant had not demonstrated actual loss to be incurred that could not be compensated by damages and that any alleged loss of business and relocation of the same would be quantifiable and compensable by an award of damages relying in the case **Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR.** 2. The Respondent submitted that the balance of convenience tilted in his favour as the he was entitled to enjoy the fruits of a lawful judgment and recover possession of his premises 3. Counsel further argued the appeal did not raise any arguable grounds that would have the court exercise its discretion in granting injunctions pending appeal. That the court should ensure that the granting of the injunctions does not inflict greater hardship than it would avoid relying on the case of **Patricia Njeri & 3 others Vs National Museum of Kenya (2001) eKLR** **Analysis and determination** 1. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of injunctive orders is merited. 2. Order 42 Rule 6(6)of the civil procedure rules gives the court powers to grant orders of temporary injunction pending hearing and determination of an appeal on such terms as it deems fit as long as the procedure for filing an appeal from subordinate court has been complied with. **Order 42 Rule 6(6)** provides as follows: “*Notwithstanding anything contained in Sub Rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with”* 1. The principles for the grant of a temporary injunction pending appeal are well settled. In the case of **Patricia Njeri & 3 Others Vs. National Museum of Kenya (Supra)**the Learned Judge held that the principles applicable in considering an application for grant of orders of temporary injunction pending appeal are as follows: “ 2. An order of injunction pending Appeal is a discretionary which will be exercised against an Applicant whose Appeal is frivolous. 3. The discretion should be refused where it would inflict great hardship than it would avoid. 4. The Applicant must show that to refuse the injunction would render the appeal nugatory. 5. The court should also be guided by the principles in **Giella Vs. Cassman Brown [1973] EA 358.”** 6. The Applicant contends that the tribunal dismissed her complaint solely on the fact that she failed to oppose the tenancy notice issued before filing the complaint in the tribunal her hence contravening section 6(1) of Landlord and tenants (shops, hotels and catering establishment) Act cap 301.That the said dismissal granted the Respondent the opportunity to effect the notice of termination dated 22nd January 2026 without considering other factors that she had raised in the complaint of being harassed and threatened by the Respondent before. She argued that this raise arguable grounds that ought to be considered in the appeal and the court in its discretion ought to ensure that execution does not happen pending the determination of the appeal so as not to render the appeal nugatory. 7. The Respondent’s argument was that the court was well guided with the provisions of the law that were mandatory and not a mere technicality that could be overlooked. That the failure to respond to the termination notice was fatal and lead to the dismissal of the complaint and with the said dismissal the termination notice was legally enforceable. 8. In the locus classicus case of **Giella Vs Cassman Brown [supra],** the court set out the conditions necessary for the grant of interlocutory injunctions as follows:“ First an Applicant must show a prima facie case with probability of success. Secondly an interlocutory injunction will not be normally granted unless the Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt it will decide an application on the balance of convenience. 9. The first test will be to determine whether the Applicant has established a prima facie case. Court of Appeal in the case of **Mrao Limited Vs First American Bank of Kenya and 2 Others[2003] eKLR** as follows:“ *In civil cases, it is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter……a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial.* 10. **Section 6(1)** of Landlord and tenants (shops, hotels and catering establishment) **Act cap 301** reads as below; **6(1)** Reference to a tribunal ‘*’ A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal:* ***Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving*** *party has not complied with any of the requirements of this section.* **Section 6 of** [**Cap 301**](https://faolex.fao.org/docs/pdf/ken62538.pdf) typically requires a receiving party to file a reference to formally oppose a tenancy notice before it takes effect however under the same section, the Tribunal retains the statutory power to permit a reference and hear the dispute if there is "sufficient reason" for non-compliance. 1. The determination of whether the Appellant has a prima facie case with chances of success in the present application calls for a consideration of the prospects of success of the pending appeal since the ultimate objective is to safeguard the rights of the Appellant in the appeal by maintaining the status quo, if need be. I hold the view that the section 6 of cap 301 having allowed that a reference can be heard despite compliance with part A of section 6(1), dismissing the case without evaluating the merits of the complaint or considering whether the omission was excusable can be argued as an error of law which is what the Applicant has raised in the memorandum of appeal. I find that the grounds raised are not only arguable but could render the appeal success hence proof of a prima facie case. 1. On the issue of irreparable harm, the Applicant has demonstrated that execution proceedings have been initiated and that the Respondent has served her with an eviction notice. If the eviction happens the Applicant will be dispossessed of her business which is her source of livelihood and there is also the possibility of the Respondent getting to lease the premises to a third party and hence she cannot be reinstated back in the position she was in before should the appeal be successful hence proof of substantial loss and need to maintain status quo pending appeal. The Supreme Court in **Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR** observed that preservation orders are intended to safeguard the substratum of litigation pending appellate proceedings 2. The balance of convenience tilts in granting the injunctions than in not, as the Respondent will not be prejudiced with the Applicant still committing to pay rent. **Final disposition** Accordingly, the notice of motion dated the 12th June 2026 has merit and is allowed in the following terms; 1. That Pending the hearing and determination of this appeal the Respondent is hereby restrained whether by himself, his agents, servants, employees or any person acting under his authority from evicting the Applicant from shop no 33 Sharif Building, locking the premises, removing the Applicant’s goods, disconnecting utilities, interfering with the Applicant’s quiet possession and occupation thereof or in any manner whatsoever interfering with the Applicant’s tenancy. 2. The Applicant will continue paying rent to the Respondent as when it is due pending hearing and determination of this appeal. 3. The Officer Commanding Station, Eastleigh Police station, is hereby directed to give the Applicant all necessary assistance to enforce the orders of this Honourable Court. 4. Costs shall be in the cause. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** day of **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Ms. Wanyonyi for Mr. Outa** for the Appellant/Applicant **N/A** for the Respondent **Ms. Mwangi** Court Assistant