[2021] KEBPRT 125 (KLR)
The Tribunal declined to grant the remaining prayers for mandatory injunction at the interlocutory stage, finding that the issues raised in the application, including the cause of damage to the premises, were disputed and could not be determined summarily on affidavit evidence. The Tribunal held that such matters...
Source-derived case information.
- Citation
- [2021] KEBPRT 125 (KLR)
- Parties
- Applicant: Sheila Wambui; Respondent: Eliud Mbugua Ndungu
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E113 of 2021
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Application for Mandatory Injunction; Directions for Full Hearing
- Outcome
- Application for mandatory injunction declined at interlocutory stage; directions issued for full hearing.
- Legal Topics
- Mandatory Injunctions, Tenant Landlord Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheila Wambui
Applicant
Eliud Mbugua Ndungu
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Application for Mandatory Injunction; Directions for Full Hearing
Legal Issues
- 1 Whether the Tribunal should grant a mandatory injunction at the interlocutory stage based on affidavit evidence.
- 2 Whether the issues raised in the application can be determined summarily without a full trial.
- 3 Whether the cause of damage to the demised premises can be established without oral evidence.
Ratio Decidendi
The Tribunal declined to grant the remaining prayers for mandatory injunction at the interlocutory stage, finding that the issues raised in the application, including the cause of damage to the premises, were disputed and could not be determined summarily on affidavit evidence. The Tribunal held that such matters required a full hearing with oral evidence to avoid prejudicing the main reference. The Tribunal therefore directed that the issues be addressed at the full hearing, with parties to file and exchange witness statements and documents, and that costs of the application would abide the outcome of the main reference.
Court Disposition
Application for mandatory injunction declined at interlocutory stage; directions issued for full hearing.
Orders
- Issues raised in the application dated 29/4/2021 to be addressed at the full hearing.
- Parties to file and exchange witness statements and paginated list of documents within 30 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E113 OF 2021 (NAIROBI)
SHEILA WAMBUI............................................APPLICANT/TENANT
VERSUS
ELIUD MBUGUA NDUNGU................RESPONDENT/LANDLORD
RULING
1. On 17th May 2021, the application dated 29th April 2021 was allowed ex-parte in terms of prayers 3,4 and 7 thereof leaving payers 2,5,6,8 and 9 undermined.
2. I note that most of the remaining prayers are in the nature of mandatory injunction and if decided on the affidavit evidence on record will end up embarrassing the full trial.
3. Indeed, the complaint herein which was curiously instituted by way of a plaint raises the same issues that are the subject matter of the undermined prayers in the said application.
4. In the case of Kenya Breweries Limited & Another – vs- Washington O.Okeyo (2002) eKLR, the Court of Appeal cited with approval Vol. 24 Halsbury’s Laws of England, 4th Edition para 948 on the test applied before granting a mandatory injunction as follows:-
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once or if the act done is a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover before granting a mandatory interlocutory injunction, the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”
(see also the case of Locabail international Finance ltd –vs- Agroexport and others (1986) 1 ALL ER 901 at page 901).
5. The cause of damage occasioned to the demised premises is in dispute and without a full trial, it is impossible for this Tribunal to know how it occurred. It is not an issue that can be determined in a summary manner.
6. In the premises, I direct as follows:-
(a) The issues raised in the application dated 29/4/2021 shall be addressed at the full hearing.
(b) The parties are directed to file and exchange witnesses statements and duly paginated list of documents for use at the hearing within 30 days.
(c) The costs of the application shall abide the outcome of the main reference.
(d) Hearing of the main Reference shall be fixed on a priority basis.
RULING DATED, SIGNED AND DELIVERED THIS 5TH DAY OF NOVEMBER 2021 VIRTUALLY.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Wamuyu for the Landlord
No appearance for the Tenant
Further order:
Mention on 3/12/2021
Order to be served upon the Tenant.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
5/11/2021