[2019] KEELC 3825 (KLR)
The court found that the applicant failed to provide evidence of non-payment of rent and that a similar application for summary judgment had previously been dismissed. The court held that the applicant had not demonstrated a clear and simple case warranting the grant of a mandatory injunction at the interlocutory...
Source-derived case information.
- Citation
- [2019] KEELC 3825 (KLR)
- Parties
- Plaintiff: Motorline Limited; Defendant: Allex Motors Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 704 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Mandatory Injunction
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Mandatory Injunction, Lease Disputes, Non Payment of Rent, Res Judicata, Summary Judgment, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Motorline Limited
Plaintiff
Allex Motors Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Mandatory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a mandatory injunction compelling the 1st respondent to vacate the suit property.
- 2 Whether the application is res judicata due to previous dismissal of similar prayers.
- 3 Whether the applicant has demonstrated sufficient grounds for grant of a mandatory injunction.
Ratio Decidendi
The court found that the applicant failed to provide evidence of non-payment of rent and that a similar application for summary judgment had previously been dismissed. The court held that the applicant had not demonstrated a clear and simple case warranting the grant of a mandatory injunction at the interlocutory stage. The application was also found to be an abuse of court process, as it sought substantially the same relief previously denied. Consequently, the court dismissed the application with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The Notice of Motion dated 7th March is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT & LAND COURT
ELC CASE NO. 704 OF 2015
MOTORLINE LIMITED...........................................PLAINTIFF
- VERSUS -
ALLEX MOTORS LIMITED & 2 OTHERS......DEFENDANTS
RULING
1. The plaintiff/applicant filed a Notice of Motion dated 7th March in which it seeks a mandatory injunction compelling the 1st Defendant/Respondent to vacate from LR 209/12499. The applicant entered into a lease agreement with the 1st Respondent which lease was to run for six years with effect from 5th July 2014. The applicant contends that the 1st Respondent is in breach of the lease in that it has not paid rent since August 2017.
2. The respondents have opposed the applicant’s application based on grounds of opposition filed in court on 28th May 2018. The 1st Respondent contends that this application is res-judicata in that the applicant had sought similar prayers which were dismissed on 28th February 2017. The 1st respondent further contends that the applicant is abusing the process of the court by filing numerous applications instead of having its suit fixed for hearing. The 1st respondent further states that there are alternative remedies available to the applicant if there are any rent arrears being claimed.
3. I have considered the applicant’s application as well as the opposition to the same by the respondents. I have also considered the oral submissions by the parties herein. The only issue for determination is whether a mandatory injunction should issue compelling the 1st respondent to move out of the suit property.
4. The principles for grant of a mandatory injunction are very clear. The dispute in issue has to be a simple one which can be remedied in a summary manner without having to wait for the main hearing. In the case of Kenya Breweries Limited Vs Okeyo EALR (2002) 1 EA page 110, the Court of Appeal held as follows:-
“ A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be remedied or where the defendant had attempted to steal a match on the plaintiff”.
5. In the instant case, the applicant has simply stated that the 1st respondent has not paid rent since August 2017. There is no evidence of non-payment of rent. The applicant herein had brought an application for summary judgement which was dismissed. The applicant is coming back to seek a similar relief which had been rejected. I find that the applicant has not demonstrated a case which can call for grant of a mandatory injunction. I do not find merit in this application which is hereby dismissed with costs to the Respondents.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 7th day of March 2019.
E.O.OBAGA
JUDGE
In the presence of;-
Mr Migere for Mr Ataka for Plaintiff/Applicant
Mr Waweru for Mr Thuita for Defendant/Respondent
Court Assistant: Hilda
E.O.OBAGA
JUDGE