[2013] KEHC 6222 (KLR)
The court found that the application for a temporary injunction could not be determined on the basis of a prima facie case or irreparable harm due to the conflicting claims and the nature of the dispute. Instead, the court considered the balance of convenience, noting that the plaintiff had been paying rent...
Source-derived case information.
- Citation
- [2013] KEHC 6222 (KLR)
- Parties
- Plaintiff: Promohouse Investment Ltd; Defendant: Developing Afrika Ltd; Defendant: Primerose Properties Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 586 of 2012
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Application for Temporary Injunction Pending Trial
- Outcome
- temporary injunction granted with conditions
- Judges
- DW Mbuteti
- Legal Topics
- Landlord Tenant Disputes, Interlocutory Injunctions, Misrepresentation of Rent, Eviction Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Promohouse Investment Ltd
Plaintiff
Developing Afrika Ltd
Defendant
Primerose Properties Ltd
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Application for Temporary Injunction Pending Trial
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction to restrain eviction or harassment pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case or irreparable harm to warrant interlocutory relief.
- 3 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court found that the application for a temporary injunction could not be determined on the basis of a prima facie case or irreparable harm due to the conflicting claims and the nature of the dispute. Instead, the court considered the balance of convenience, noting that the plaintiff had been paying rent regularly and should continue to do so pending the suit's determination. The court held that the plaintiff should be protected from eviction, harassment, or any action interfering with its enjoyment of the premises while the dispute over rent and floor area is resolved at trial. The temporary injunction was therefore granted on condition that the plaintiff continues to pay the current...
Court Disposition
temporary injunction granted with conditions
Orders
- A temporary injunction is granted restraining the defendants from evicting, harassing, or interfering with the plaintiff's enjoyment of the premises pending determination of the suit, on condition that the plaintiff continues to pay the current rent as and when it falls due.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
ELC SUIT NO. 586 OF 2012
PROMOHOUSE INVESTMENT LTD………...…….....….…...PLAINTIFF
VERSUS
DEVELOPING AFRIKA LTD
PRIMEROSE PROPERTIES LTD ..……...............…DEFENDANTS
R U L I N G
1. The Plaintiff is the 2nd Defendant’s tenant in business premises situated in Industrial Area, Nairobi. The 1st Defendant is apparently the 2nd Defendant’s management agent for the premises.
2. The Plaintiff’s case as pleaded in the plaint is that due to the Defendants’ misrepresentation regarding the size of the floor area occupied by the Plaintiff, the Plaintiff has been paying rent that is higher than it ought to have been paying, as a result of which it has overpaid rent by KShs 412,993/90. The Plaintiff claims this sum.
3. The Plaintiff’s further case is that when it raised the said claim with the Defendants, they in turn manufactured a false claim against it for alleged unpaid rent amounting to KShs 473,818/00 purely to defeat the Plaintiff’s claim. They also threatened to evict the Plaintiff from the premises on account of the same. The Plaintiff therefore seeks in addition to the KShs 412,993/90 an appropriate permanent injunction to protect its tenancy.
4. Together with the plaint the Plaintiff filed notice of motion dated 10th December 2012seeking a temporary injunction to protect it pending disposal of the suit. That application is the subject of this ruling. The Plaintiff also seeks in the application an order “for a re-measurement of the premises the Plaintiff occupies on the 3rd floor of LR No. 209/8670 known as ABC Bank Building – Industrial Areain terms of its square feet”. This is clearly not an order that can be granted in this interlocutory application. It begs an issue between the parties that is best left to trial of the action.
5. The application is brought under Order 40, Rules 1, 2and 4 of the Civil Procedure Rules, 2010 (the Rules). It is supported by an affidavit sworn by one ELIJAH M KILONZI, the managing director of the Plaintiff.
6. The Defendants opposed the application by replying affidavit belatedly filed on 21st May 2013 – belatedly because it was filed after expiration of various extensions granted to them. But I will consider it since it is now on record.
7. The application was canvassed by way of written submissions. Those of the Plaintiff were filed on 12th of March 2013. The Defendants’ submissions were also belatedly filed on 21st May 2013. They are now on record and I must consider them.
8. I have considered the submissions of the parties including the cases cited.
9. It seems to me that this application will be best decided upon a balance of convenience. It will not be possible to decide it upon the grounds of prima facie case with a probability of success or irreparable loss.
10. From the material now before the court it appears that the Plaintiff has been paying its rent regularly. It must continue to pay that rent that it has been paying pending determination of its claim that the rent has been overstated on account of the actual floor space it occupies. While it continues to pay its current rent it must be accorded the protection it seeks against eviction or harassment or other action that might interfere with its enjoyment of the demised premises.
11. In the circumstances I will grant temporary injunction as sought it prayer 3 of the application upon the condition that the Plaintiff continues to pay the rent it has been paying as and when it falls due. Costs of the application shall be in the cause. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JULY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 5TH DAY OF JULY 2013