[2010] KEHC 2137 (KLR)
The court found that the plaintiff, having been a tenant since 1995 and having vacated the premises for renovations at the defendant's request with the expectation of reinstatement, had a legitimate interest in the premises. The defendant's subsequent offer of a new lease, acceptance by the plaintiff, and withdrawal...
Source-derived case information.
- Citation
- [2010] KEHC 2137 (KLR)
- Parties
- Plaintiff: Rafiki Spares (2003) Limited; Defendant: The Registered Trustees of Moi University Pensions Scheme
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 52 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted in favour of the plaintiff; costs awarded to the plaintiff.
- Legal Topics
- Landlord Tenant Disputes, Interlocutory Injunctions, Lease Termination, Possession Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rafiki Spares (2003) Limited
Plaintiff
The Registered Trustees of Moi University Pensions Scheme
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from leasing out the premises pending determination of the suit.
- 2 Whether the plaintiff retains any tenancy rights after vacating the premises for renovations and subsequent rejection by the defendant.
- 3 Whether the defendant's late filing of papers without leave affects the proceedings.
Ratio Decidendi
The court found that the plaintiff, having been a tenant since 1995 and having vacated the premises for renovations at the defendant's request with the expectation of reinstatement, had a legitimate interest in the premises. The defendant's subsequent offer of a new lease, acceptance by the plaintiff, and withdrawal of the offer created uncertainty regarding the plaintiff's tenancy rights. Given the plaintiff's long-standing occupation and the unresolved status of the tenancy, the court held that the plaintiff had established a prima facie case warranting preservation of the subject matter. The defendant's failure to regularize its response further justified granting the interlocutory...
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; costs awarded to the plaintiff.
Orders
- An injunction is issued restraining the defendant from renting out the premises Eldoret Municipality block 7/80 until determination of the suit.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 52 of 2010
RAFIKI SPARES (2003) LIMITED.........................................................PLAINTIFF
=VERSUS=
THE REGISTERED TRUSTEES OF
MOI UNIVERSITY PENSIONS SCHEME.......................................DEFENDANT
R U L I N G
I. Background:
1. The Plaintiff was originally a tenant in the Defendant’s
premises Eldoret/Municipality block 7/80. The Defendants
requested the Plaintiff to vacate the Premise in order to carry out renovations. This renovation was indeed carried out and completed.
2. A new lease and or terms of occupation of the premises was given to the tenant. They instead came to Court and filed this suit on the 7th April, 2010 seeking orders that they are still tenants; that a mandatory injunction be put in requesting the Court to install them once again into the premises. By an application of 1st April, 2010 filed on 7th April,2010 the Plaintiff tenant sought for orders restraining the said landlords from leasing out the premises where the Plaintiff had originally occupied. Further mandating orders were sought.
3. The Defendants were served but they did file their papers out of time without leave of the Court.
4. The procedure would be that the respondent would file an application by way of Notice of Motion under order L r I CPR seeing leave to file the replying affidavit out of time. That a draft application would be annexed to the said application that would be deemed to have been filed if granted.
5. The hearing of this application was undertaken exparte.
II. Opinion
6. From the annextures attached to the application. The Defendants made an offer dated 24th November 2009 to occupy the premises at a rent of 65,000/= per month. This was accepted on 30th November 2009 and a two months rent cheque made out of Kshs 130,000/= was drawn. The said cheque was then withdrawn and returned back to the tenant. It therefore followed with a letter of 19/3/2010 that the board rejected the Plaintiff/applicant as a tenant despite his being in the premises since 1995. the Plaintiff tenant wants redress in this Court.
7. This Court finds that the Plaintiff/applicants whom were alleged to have been in occupation of the premises since 1995, and whom were asked to leave the premises and did so on understanding that they would return to the same premises. That they were actually offered a new arrangement to return to the lease premises. It is hereby noted that the Plaintiff has a right to seek redress in this Court.
8. The Orders of the Court would be that there be an injunction to issue against the Defendant restraining them from renting out the actual space on the premises Eldoret Municipality block 7/80 until the determination of this suit.
9. Obiter dictum – documents/letters marked “without prejudice” are not to be used in proceedings before court unless agreed to by parties.
10. I award costs to the Plaintiff/applicant.
DATED THIS 21ST DAY OF APRIL, 2010 AT ELDORET.
……………………………………………….
M.A. ANG’AWA
JUDGE
(i) D.K.N. Magare, Advocate instructed by the firm of M/s Magare and Co. Advocates for the
Plaintiff/Applicant - Present
(ii) J.M. Mburu instructed by the firm of M/s Mburu Maina & Co. Advocate for the Respondent - Present