[2015] KEELC 601 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT NAIROBI

ELC SUIT NO. 397 OF 2014

PATRICK SHIRA LEKASI.............................................PLAINTIFF

VERSUS

ERIC BARONGO MULIRO........................................DEFENDANT

RULING

The Application

The application before the court is a Notice of Motion dated 27th March 2014 filed by the Plaintiff, seeking the following orders:

1. That the Defendant be ordered to vacate all the property known as DAGORETTI/RIRUTA/2192 (hereinafter referred to as “the suit property”) immediately upon service of this order.

2. That the Defendant be ordered to refrain from entering into the property or interfering with the said property in any way.

The grounds for the said application are that the Defendant is unlawfully in occupation of the suit property, which occupation is to the detrimental exclusion of the Plaintiff who is the registered owner, who is unable to access and control his property, and faces the risk of losing the property, as the Defendant is not paying any rent thereupon. Further, that the Defendant is unlawfully holding the said property in violation of contractual provisions after the rescission of an agreement of sale of the property upon the Defendant’s default.

The Plaintiff in his supporting affidavit sworn on 27th March 2014 explained that by an Agreement of Sale dated 23rd October 2013, he contracted with the Defendant who was to purchase the suit property at an agreed purchase price of Kshs.5,500,000/=. He annexed a copy of the said Agreement of Sale. Further, that the Defendant paid the required deposit of Kshs.550,000/= and took possession of the suit property, on the understanding that he would pay the balance of the purchase price of Kshs.4,950,000/= on or before 14th November, 2013.

However, that by the completion date, the Defendant had not settled the balance of the purchase price, and he requested for 7 more days to do so. Further, that on 14th January, 2014 the Plaintiff through his advocates issued the Defendant with a twenty-one (21) days rescission notice, and that the balance of the purchase price still remained outstanding at the expiry of the said rescission notice. The Plaintiff annexed a copy of the rescission notice.

The Plaintiff further stated that on 26th February, 2014, he, through his Advocates, issued the Defendant with a demand notice to vacate the suit property within 7 days, but that he resisted the same, and still occupies the building at no cost, after breaching their contract. The Plaintiff explained that the Defendant was living on the suit property without making payment for rent save for Kshs.35,850/= which was paid on 9th December 2014 being rent from 19th October, 2013 to 30th November 2013 only. Further, that the Defendant has commenced renovation on the suit property illegally and without the Plaintiff’s and the requisite approvals from the relevant authorities.

The Defendant’s Response

The Defendant opposed the Plaintiff's application in a replying affidavit he swore on 7th May 2014. The Defendant admitted that the Plaintiff is the registered owner of the suit property, and that he entered into a sale agreement with the Plaintiff to purchase the same and paid a deposit of Kshs 550,000/=. However, he averred that the sale agreement did not limit and/or have specific provision to the effect that the balance due shall be paid either in cash or through financing, and that he had informed the Plaintiff that he would be seeking financing for the purchase. Further, that the Plaintiff had by an email dated 18th September, 2013 responded to the same asking for a copy of the letter of offer.

Furthermore, that he also informed the Plaintiff of the delays he was facing with his bank in this respect, as a result of which the Plaintiff demanded that he pays rent for the premises for the time the loan facility was under process. The Defendant stated that he complied and started making payments for the rent for the suit property. The Defendant annexed copies of email exchanges with the Plaintiff on these averments.

It was the Defendant’s averment the Plaintiff having proposed that he pays rent after the due date of payment of the balance of the purchase price, the sale agreement was varied to that extent in so far as the date of payment was concerned. However, that the Plaintiff by a letter dated 11th December, 2013 indicated that he vacates the suit property within 7 days whilst insisting that the agreement did not have provision for financing. The Defendant stated that his advocate subsequently responded in a letter dated 16th December 2013 and requested that the Plaintiff does accord time for finalization of the process. Further, that the Plaintiff then issued the letter dated 14th January 2014 giving 21 days’ notice within which to complete the transaction.

The Defendant stated that the bank thereafter approval the loan facility by a letter dated 3rd February 2014, and also requested that he avail the unfinanced portion, and further requested the bank’s advocate to proceed and prepare a charge over the property. Further, that the bank’s Advocates, M/S Kalya and Company Advocates then proceeded to issue a professional undertaking to the Plaintiff’s advocate in a letter dated 3rd February 2014 and confirmed having in their possession the unsecured sum of Kshs.1,100,000/=. They also in the said letter requested for the documents to facilitate completion.

The Defendant averred that the Plaintiff’s Advocate then responded in a letter dated 10th February, 2014, and introduced new conditions and a variation of the agreement, when it was only necessary that the document be released on the strength of the professional undertaking. Further, that his advocates by a letter dated 28th February, 2014, again asked that the documents called for be released to facilitate completion.

According to the Defendant, once the confirmation of the Bank’s approval had been obtained, a professional undertaking been issued, and a request for the necessary documents been made all within the completion period, the Plaintiff could not allege that the agreement stood rescinded. Further, that the prayer for an order of eviction is not warranted for the reasons that the sale agreement has been substantially performed as the Defendant paid a deposit and took possession of the premises with the consent of the Plaintiff, the Defendant duly complied and within the notice period, and because he has invested in the premises by renovating the same, with the full knowledge and consent of the Plaintiff.

The Issues and Determination

The parties were directed to file written submissions on the Plaintiff’s application. The Plaintiff’s counsel filed submissions dated 10th September 2014 and further submissions dated 27th October 2014, while the Defendant’s counsel filed submissions dated 16th September 2014. I have read and carefully considered the pleadings filed and submissions made by the parties herein. The question to be determined is whether the Plaintiff has met the threshold for the grant of the orders of injunction sought.

The principles of law on the grant of temporary and mandatory injunctions are settled. The requirements for the grant of temporary injunctions are stated in Giella vs Cassman Brown & Co Ltd,(1973) EA 358 , and these are that the applicant must establish a prima facie case, and that he or she would suffer irreparable loss which may not be compensated by an award of damages. If the Court finds that the two requirements are not satisfied, it may decide an application on the balance of convenience.

For the grant of mandatory injunctions, the principles were set out by the Court of Appeal in Kenya Breweries Ltd and Another v Washington Okeyo (2002) 1 E.A. 109wherein it was held that that there must be special circumstances shown over and above the establishment of a prima facie case for a mandatory injunction to issue, and even then only in clear cases where the court thinks that the matter ought to be decided at once.

Lastly, as to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others[2003] eKLR statedas 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 apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

The Plaintiff submitted in this regard relying on the provisions of section 3(2) of the Law of Contract Act, sections 38(1) and 39 of the Land Act and sections 24 and 44 of the Land Registration Act, that parties should honour their obligations under a contract, and that he discharged his duties and fulfilled his contractual obligations by giving vacant possession of the suit property to the Defendant. However, that the Defendant has breached the terms of the sale agreement as he has not paid the balance of the purchase price within the completion period of 45 days after execution of the contract. The Plaintiff cited the decisions in Kukal Properties Development Ltd vs Maloo & Others(1990-1994) EA 281.

Further that there was no amendment of the sale agreement as alleged, as clause 21 of the same required any amendment to be in writing , signed and witnessed. The Plaintiff submitted that following the Defendant’s breach he explored his options and opted to rescind the contract and seek damages. The Plaintiff in this respect relied on the decisions in Datalogix Ltd vs Kenya Pipeline Co. Ltd(2006) eKLRand Johnson vs Agnew(1979) 1 All E.R. 883, and on sections 39 and 40 of the Land Act.

Lastly, the Plaintiff submitted that his case has special circumstances to warrant the grant of mandatory injunctions, and asked the Court to adopt the decision in Locabail International Finance Limited vs Agro-Export(1988) 1 All E.R. 901. He argued in this respect that the injury occasioned to him cannot be adequately compensated by damages as he has been deprived of his property and home, and that this is a clear case for reasons that he is the registered owner of the suit property, and the breach of the sale agreement by the Defendant is plain, obvious and manifest.

The Defendant on his part submitted that the orders sought by the Plaintiff are of a final nature and cannot be granted at an interlocutory stage. It was his opinion that granting the orders would amount to determining the suit herein at an interlocutory stage. He cited various decisions in support of these submissions, including Caroline Odero & John Abuko vs Fredrick Mwangi Chege, Nairobi ELC 60 of 2014,Rachel Mukami Ngugi vs Mercy Wanjiru Thogo, Nairobi ELC 1034 of 2012 andHelen Muthoni Kibora vs James Kibora & John MainaNairobi HCCC 280 of 2005

This Court notes that both prayers sought by the Plaintiff in her Notice of Motion will result in an eviction of the Defendant, and are therefore both in the nature of mandatory injunctions. The first question I must therefore answer is whether the Plaintiff has established a prima facie case. The Plaintiff in his Plaint dated 27th March 2014 filed on 31st March 2014 is seeking orders of vacant possession and for rent for the period inhabited after the completion period. The Plaintiff brought evidence of a certificate of lease issued to him on 22nd August 2008 with respect to the suit property. He also brought evidence of the sale agreement entered into with the Defendant dated 23rd October 2013, showing that completion was to be 45 days after signing of the said agreement.

The Defendant did not dispute that the Plaintiff is the registered owner of the suit property. He claimed that the delay in paying the balance of the purchase price was due to delays in securing a loan facility. He also relied on undertakings given on 3rd February 2014 by his bank and advocates as to the payment of the balance of the purchase price, to argue that he had performed his obligations before the 21-days’ completion notice issued by the Plaintiff’s Advocate on 14th January 2014. The Defendant also alleged he had been paying rent as agreed and referred to an annexure to his replying marked “ERM5” as his evidence. However, upon perusal of the said replying affidavit the Court found that there was no such annexure attached to his replying affidavit.

The Court therefore finds that the Plaintiff as registered owner, and having not received the balance of the purchase price as stated in the sale agreement has demonstrated a prima facie case. It is my view that this is also a clear case for the mandatory injunction sought to issue as what concerns the court at this stage is the possession of the suit property, and clause 7 of the sale agreement between the parties provided that the Defendant was to be entitled to vacant possession of the suit property upon paying Kshs 4,950,000/= on or before 14th November 2013 into the Plaintiff’s loan account. There was no provision in the sale agreement between the Plaintiff and Defendant as to undertakings being given by the Defendant’s Advocates or Bank as to payment of the balance of the purchase price.

There being no evidence of payment of the balance of the purchase price as stated by the sale agreement and no evidence provided of any payment of rent by the Defendant, there is no reason why the Plaintiff as registered owner should be denied possession of the suit property. In any event the parties still have the opportunity to argue their respective cases at full trial, including on the issues as to whether there was breach of the sale agreement and a valid rescission of the same by the Plaintiff, and no final order or determination of the suit is being made at this stage by the mandatory injunction being granted, as possession of the suit property can still revert back to the Defendant in the event that he proves his entitlement.

The Plaintiff’s Notice of Motion dated 27th March 2014 is accordingly allowed only to the extent of the following orders pursuant to the provisions of section 3A and 63(e) of the Civil Procedure Act:

1. That the Defendant shall vacate the property known as DAGORETTI/RIRUTA/2192 within 15 days after service by the Plaintiff of the orders granted herein.

2. That the Defendant shall thereafter be restrained either by himself, his servants and/or his agents from accessing, entering and/or interfering with Plaintiff’s quiet possession of the property known as DAGORETTI/RIRUTA/2192 pending final determination of this suit or until further orders.

3. The costs of the Plaintiff’s Notice of Motion dated 27th March 2014 shall be in the cause.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this _____3rd____ day of _____February____, 2015.

P. NYAMWEYA

JUDGE