[2018] KEHC 6524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI (NAIROBI)

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL CASE NO.142 OF 2018

SINAI VISION LIMITED........................................................1ST PLAINTIFF

DAVID G MURAI

T/A DAGAT INVESTMENT.....................................................2ND PLAINTIFF

VERSUS

NAIROBI COUNTY GOVERNMENT..........................1ST DEFENDANT

INSPECTOR GENERAL OF POLICE................................2ND DEFENDANT

R U L I N G

The Plaintiff herein filed application dated 9th April 2018 seeking the following orders

1. Spent.

2. An order of injunction to restrain the Defendants by themselves, their servants, employees, or any other person claiming under them from closing, entering, occupying or leasing/granting to any other person the right to run and occupy toilet Nos. MMI and MM3 Muthurwa market pending hearing and determination of this suit.

3. Costs of the application be in the cause.

The applicant raised the following grounds:-

· That the Plaintiffs have a legal contract with the 1st Defendant to run and manage public toilets Nos. MM1 and MM2 Muthurwa market until the said contact is terminated legally.

· That the Defendants attempted to evict the Plaintiffs and hand over its management to other persons without following due process

· That the applicants have a primafacie case with high probability of success and the balance of convenience tilts on the applicants.

· That the orders sought should be granted ex-debito justitiae to enforce the rule of law in the country.

In response the 1st Defendant filed a replying affidavit sworn on 17th April 2018 by Lawrence Mwangi an official at the 1st Defendant’s the Natural and Environment Resources Department. He averred that contrary to the Plaintiff’s allegation, the 1st Defendant was informed that the toilets had been taken over by goons prompting the 2nd Defendant to forcefully take over the toilets as the situation was becoming acrimonious.

He further averred that the Plaintiff’s contract expired on 9th April 2018 and despite Plaintiff application for renewal the 1st Defendant has not been delirious in renewing. He stated that upon receipt of renewal of contract the department usually issues the operator of the toilet with a new contract for execution and in the absence of express renewal of the contract the same is deemed extinguished by operation of time.

He further averred that the keys to the toilets are not in the hands of the 1st Defendant and the Plaintiffs had the right to enjoy the right of toilets up to 9th April 2018 and that Plaintiff had to pay rent for April 2018 and that the contract did not provide for payment of rent pro-rata rather payment in advance full rent of Kshs. 15,000. He added that payment for the month of April was not demanded but willfully paid by the Plaintiffs to county Revenue collection account which Environment department has no control over; that in the absence of express renewal of contract, the contract extinguished; that the dispute arose on 30th March 2018 and Plaintiff came to Court on 9th April 2018 the same day the contract was expiring; the rent payment was on 7th April 2018.

He stated that the orders sought are a backdoor fashion to extend the contract. He stated that closure by alleged goon has not been condoned by the 1st Defendant. That the public are inconvenienced by the closure thus balance of convenience tilts to the 1st Defendant and no prejudice will be occasioned to the applicants if the application is dismissed.

Oral submissions by Counsels

Submissions by Plaintiff

Counsel for the applicants restated the grounds for the application and averments in the Supporting Affidavit as captured above. He submitted that around December 2017, the Plaintiffs reminded the 1st Defendant that the contract was about to expire. Plaintiffs the Defendant to act in terms of clause 5(2) of the contract which required the 1st Defendant to notify the Plaintiffs in writing, in not less than 3 months of such expiry, to relinquish the management of the toilets or renewal of terms. He submitted that towards the end of March, the toilets were invaded by unknown persons; that the invasion was brought to the attention of the 1st Defendant and also to the police because of security nature. He submitted that the police never did anything and the 2nd Defendant took over the situation and closed the toilets as the situation was threatening to be out of control. He submitted that the 1st Defendant failed to normalize the situation as expected. He further submitted that on 22nd February 2018.

Counsel for Plaintiff further submitted that the Defendant issued the Plaintiffs with business permit limited to specific toilets to expire in December 2018. He argued that the Plaintiff paid rent of 30,000 which was received by 1st Defendant as late as 5th April 2018 and by virtue of the 1st Defendant having accepted rent, the Plaintiffs are deemed to have been holding over the premises; and that they should be estopped from taking advantage of their inaction; that the 1st should not rely on the contract as it has failed to act on it. He asked, “If the 1st Defendant did not wish to renew[h1]that contract, why did it issue a permit?”

Submissions by 1st Defendant’s Advocate

In response, Counsel for the 1st Defendant submitted that clause 5 (1) provided that the contract may be renewed by the parties and that paragraph 12 of Plaintiffs Supporting Affidavit confirm that parties explored that option by meeting with the person in charge of environment department in January 2018; further, paragraph2 of the contract shows that it was a continuation of a previous contract. She submitted that clause 5 (3) provide for renewal in express written consent and that the clause is coached in mandatory terms.

Counsel further submitted that, it is a requirement for business permit to be issued yearly and Plaintiffs’ permit was issued on 22nd February and that he had to have a permit to operate up to 9th April 2018.

On payment of rent, she restated averments in the replying affidavit to the effect that payments were made to revenue collection account which the Environment department had no control over it. He submitted that the amount can be refunded to the Plaintiffs. She submitted that the contract the Plaintiff seeks to rely on was express on period and if order sought herein is granted, it will extend the contract which has already expired; and it will set a bad precedent. She concluded that closure of the toilet is at the detriment of the people of Nairobi and prayed for the application to be dismissed.

ISSUE FOR DETERMINATION

Whether Plaintiff has demonstrated prerequisites for grand of injunction.

Conditions for grant of injunctions have been set out in the case of GIELLA VS CASSMAN BROWN & CO.LTD (1973) EA.358 as follows:-

1. Applicant to demonstrate a primafacie case with probability of success

2. Unless injunction is not granted applicant will suffer irreparable damage to be harm which will not be adequately compensated by damages

And if in doubtwill Court will decide on a balance of convenience

I will consider public interest which has been brought out in this case.

Primafacie case

The Plaintiff has alleged inaction on part of the 1st Defendant in respect of renewal or extinguishing of the contract as required by clause 5(2).the Plaintiffs contention is that the 1st Defendants inaction and should be interpreted to mean that the 1st Defendant intended to renew the contract and the Plaintiffs were holding over.

Has Plaintiff established a primafacie case?

My view is that for the Court to arrive at a finding as to whether the Plaintiff has established primafacie case, pleadings should out-rightly/ clearly show/demonstrate that the Plaintiff has a claim. The Court will look at the plaint, defence, documents filed and averments in affidavits filed to be able to reach a conclusion that a primafacie case has been established. Absence of primafacie case imply a situation where it is out rightly clear that there is no claim and application should be dismissed together with the entire suit without giving parties an opportunity to adduce evidence.

Upon considering arguments from both sides in the instant case and perusing pleadings herein, I am of the view that the Court will be required to determine the effect of failure by 1st to expressly decline to renew the contract in the event that the applicant would wish to pursue this suit beyond this application.as to whether the primafacie has case has probability of success, I would not want to comment at this stage of the trial. My view is that it would be enough for Plaintiff to demonstrate that there are issues that need to be tried. The trial Court will arrive at an informed decision after according all the parties opportunity to be heard.

Whether the applicants are likely to suffer irreparable harm which cannot be remedied by award of monetary damages

There is no dispute that the applicants were aware that their contract was to last for 2 years; expiry date being 9th April 2018; it is not disputed that no express written consent was executed to extend the contract as provided in the contract. Supporting Affidavit confirmed that the Plaintiff engaged the 1st Defendant on renewal before 9th April 2018. The circumstances herein were such that the applicant had indication to prepare for nonrenewal of the contract. The occurrence did not catch them by surprise. On payment of rent 1st Defendant’s official has indicated that environment department had no control of payment to revenue collection ACC account; there is no indication that the 1st Defendant demanded payment nor were they notified that rent was to be deposited in the Revenue account. In respect of issuance of business permit for year 2018, the Plaintiff could not have operated without a permit between January and 9th April 2018; Counsel for the 1st Defendant has indicated that rent can be refunded.

From the foregoing I am of the view that the applicants have not demonstrated that damages will not be adequate remedy in the event that the Court will find in their favour after trial.

Public interest

There is no dispute that the toilets are now closed. The 1st Defendant is required to ensure toilets are open for use by members of the public. The dispute herein has caused the closure of toilets since 4th April 2018. it is common knowledge that Muthurwa is a busy market in Nairobi. I agree with Counsel for the 1st Defendant that closure of the toilets will occasion inconvenience to members of public who must be exerting pressure on 1st Defendant service to the public is not interrupted. Balance of convenience tilts on the 1st Defendant.

From the foregoing I see no merit in the application herein and do dismiss it with costs to the 1st Respondent.

Dated and Delivered at Nairobi this 11th day of May, 2018

………………………………

RACHEL NGETICH

JUDGE

IN THE PRESENCE OF

…………………………COURT ASSISTANT

………………………… COUNSEL FOR PLAINTIFFS/APPLICANTS

………………………… COUNSEL FOR DEFENDANTS/RESPONDENTS

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