[2023] KEELC 18488 (KLR)

Systemedia Technologies Limited v Matheka & 3 others (Environment and Land Appeal 21 of 2022) [2023] KEELC 18488 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18488 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal 21 of 2022

EK Wabwoto, J

June 29, 2023

Between

Systemedia Technologies Limited

Appellant

and

Grace Matheka

1st Respondent

Upstate Auctioneers

2nd Respondent

Moran Auctioneers

3rd Respondent

Great Rift Valley Auctioneers

4th Respondent

(Being an Appeal from the Ruling and Order of Honourable Senior Resident Magistrate Mr. Isaac Orenge on 2{{^nd}} March 2018 in Milimani CMCC No. 4210 of 2015 consolidated with CMCC No. 4457 of 2017)

Judgment

1. This is an interlocutory appeal which challenges the ruling rendered on 2nd March 2018 at Nairobi by Hon. Isaac Orenge (SRM). The Appellant had sought for an order restraining the Defendants (now Respondents) form levying distress, removing and/or selling of goods already irregularly proclaimed or any further proclamation and/or distraining of the moveable property of the Plaintiff (Appellant) lying in its business pending the hearing and determination of the application together with costs of the said application.

2. Upon hearing the application, Hon. Isaac Orenge (SRM) delivered a ruling on 2nd March 2018 dismissing the application with costs to the Respondents for the reasons that the Plaintiff (now Appellant) had not met the threshold for grant of the orders sought. The Appellant being dissatisfied with the outcome, filled this appeal through Memorandum of Appeal dated 24th March 2018. The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: -1. THAT the Learned Magistrate erred in law by duplicating a ruling on a Notice of Motion Application he had delivered earlier on 22/3/2017.

2. THAT the Learned Magistrate erred in law and in fact by failing to consider and appreciate that the ruling delivered on 2nd March, 2018 addressed and was in respect of the wrong application.

3. THAT the Learned Magistrate erred in law and in fact by failing to pronounce himself on the issue of unilateral increase of rent by the 1st Respondent and retrospective application of the same.

4. THAT the Learned Magistrate erred in law and in fact by failing to appreciate that the ruling delivered on 2nd March 2018 has grave and material errors, discrepancies and contradictions.

5. THAT the Learned Magistrate erred in Law and in fact in failing to find that the Appellant had adduced sufficient reasons for grant of an injunction against the Respondents pending hearing and determination of the main suit.

6. THAT the Learned Trial Magistrate erred in law by failing to find that the proposed unilateral rent increment from Ksh 114,750/- per quarter to Ksh 150,000/- per month and backdating and demanding non-existent arrears pegged on the proposed increase by the 1st Respondent was unlawful, unconscionable and extortionate.

7. THAT the Learned Magistrate erred in law and in fact by finding that there were rent arrears which had not been paid.

8. THAT the Learned Magistrate erred in law and in fact by failing to find that the unilateral and arbitrary increase in rent via correspondence by the 1st Respondent contravened the terms of the Lease Agreement dated 2/12/2009.

9. THAT the Learned Magistrate erred in law and in fact in failing to find that the Appellant’s case raises triable questions worth being considered on merit in a full hearing/trial.

10. THAT the Learned Magistrate erred in failing to consider, appreciate and find that the Appellant stands to suffer substantial and irreparable harm and damage by dismissing its Notice of Motion Application dated 10th November, 2016 and failing to consider at all its Notice of Motion Application dated 21/6/2017.

11. THAT the Learned Magistrate erred in law by failing to exercise his discretion properly as required by law.

3. On the basis of those grounds, the Appellants sought the following orders: -a.THAT this appeal be allowed.b.THAT the ruling of Honourable Senior Resident Magistrate delivered on 2nd March 2018 be set aside in its entirety and the Appellant’s Notice of Motion Application dated 10th November 2016 and 21st June 2017 respectively and the motion filed herewith be allowed.c.Any other relief as the Honourable Court may deem fit to grant.

4. The Appeal was canvassed through written submissions. The Appellant filed written submissions dated 14th June 2022 through M/S Sethna Atonga & Company Advocates. The Appellant submitted that the dispute herein arose from a letter dated 26/6/2015 from the 1st Respondent’s Lawyers which is at page 26 of the Record of Appeal and from paragraph 2 thereof which states; “since 2012 the rent has increased from Kshs 45,000/- to Kshs 80,000/- according to the market rates of similar properties in Donholm.” Kindly pay “the arrears of the increment-emphasis ours” now totaling to Kshs 1,295,000/-…failure to pay the outstanding monthly balance will be followed by one (1) month termination notice terminating the remaining part of the lease and handing over vacant possession of the premises.”

5. It was submitted that the above letter was illegality and void ab initio for the following reasons: -a.The arrears which the Appellant after being threatened with execution paid to the 1st Respondent and Auctioneers fees totaling Kshs 1,895,000/- were not arrears of rent. But as captured at paragraph 3 of the Respondents’ Advocates letter dated 26. 06. 2015 –‘kindly pay “arrears of the increment”- emphasis ours now totaling Kshs 1,295,000/-. This means that the 1st Respondent unilaterally and arbitrarily increased rent from Kshs 45,000/- to Kshs 80,000/- or quarterly as per the lease from Kshs 135,000/- to a whopping Kshs 240,000/- without the Appellant’s input. Further the 1st Respondent backdated the unilateral and arbitrary increase from 26. 06. 2015 to 2012 as captured at paragraph 2 of the letter dated 26. 05. 2015. b.At al material times, the Appellant had paid rent dutifully. From the correspondence by the 1st Respondent, what the Respondent acting in concert obtained unlawfully and irregularly from the Appellant were not rent arrears but were alleged arrears of unilateral, unlawful and arbitrary increments of rent backdated so as to apply retrospectively and unjustly enrich the 1st Respondent. The trial court was wrong in indicating that the Appellant was in arrears and countenancing payment of backdated rent increments. In Nakuru ELC Civil Appeal No. 68 of 2016 Supa Duka Nakuru Ltd –Vs- Baringo United Co. Ltd, Justice Munyao stated as follows;” I hold the view that a cautious approach is needed before an order for bak pay on rent is made, for the simple reason that this is a cost that was never budgeted for by the Tenant and was never taken into account by the tenant when operating his business. It can be a huge burden which can lead to the crippling of one’s business especially because it now has to be paid in lump sum. The only requirement is that the discretion must be exercised judicially and a justification for the discretion given.” On the point of back pay/retrospective increment of rent we submit that the 1st Respondent was not entitled to demand rent increment retrospectively. This can also be deciphered from the fact that they never filed any Cross- Appeal on the issue of retrospective rent as they had unjustly pocked Kshs 1,895,000/- from the Appellant.c.That to demand alleged arrears of unilaterally increased rent and to apply the same retrospectively was irregular and unlawful on the part of the 1st Respondent.d.The 1st Respondent’s decision to increase rent from Kshs 45,000/- to Kshs 80,000/- monthly was unilateral, high handed and arbitrary. This increase was excessive and unconscionable. The Appellant was not consulted at all and neither was notice of this increase given as required under paragaphs 4c and 4 d of the lease; see the case of Antony Muli T/a Mutembei Mathoka General Store V Kilalani Farmers Co-operative Society Ltd (2014) eKLR.e.The monthly retrospective increase of rent was unlawful contravening paragraph 4 of the lease. The rent as per the lease was payable quarterly and not monthly.f.There was no justified basis upon which rent was increased monthly from Kshs 45,000/- to Kshs 80,000/-. There was no valuer’s report on the market rates of rent payable in the area at the time or a report of any competent professional upon which the unilateral increase of rent by the 1st Respondent would be justified. See the case of Gatakani Investment Limited Vs Midtown Lodge Limited (2003) eKLR, a professional valuation report is a must in such instances.g.The letter offended paragraphs 4 (c)of the lease at page 17 of the Record of Appeal that provides that “ the terms of this agreement are subject to review after two (2) years subject to convenience of parties. Further paragraph 5 of the lease provides that rent will be reviewed after two years including any renewal period. The term will does not connote mandatory increase. In fact, a review could be upwards or downwards (see the Appellant’s letter dated 22. 03. 2012) at page 50 of the Record of Appeal) depending upon the existing circumstances e.g. economic stability, inflation etc. After expiry of the two years as required by the lease i.e. on 02. 112011 no notice of intended review was served upon the Appellant by the 1st Respondent. In fact the Appellant in good faith effected a 5% increment of rent effective 1. 02. 2012 (see the letter dated 15. 05. 2012) at page 49 of the Record of Appeal. It was not shown that the landlady’s unilateral, arbitrary and retrospective increase in rent and backdating the same complied with the applicable provisions of law and the same cannot be held to be lawful; andh.The letter dated 26. 06. 2015 at page 26 of the Record of Appeal also issued a one (1) month’s termination notice yet clause 4 d of the lease agreement clearly provides for three (3) months’ notice to terminate the lease.

6. That in an attempt to try and solve the issue amicably the Appellant sought answers vide a letter dated 10. 07. 2015 which appeared at page 56 of Record of Appeal but the 1st Respondent would hear none of it. She sent the 2nd Respondent to proclaim its goods not at the premises in Donholm but at its main office in Athi River knowing very well that since the Appellant serves banks and other financial institutions this would paint the Appellant in bad light in front of its customers so as to coerce and put undue influence and pressure on the Appellant to pay the unlawful and irregular sums.

7. The Appellant also submitted that in a very rudely worded letter dated 10. 07. 2015 at paragraph 2, the 1st Respondent’s Lawyers indicated the Appellant had rent arrears of Kshs 1,295,000/- and not arrears of increment as they had indicated in their letter dated 26. 06. 2015. They instructed the 2nd Respondent, Upstate Kenya Auctioneers to distress against the Appellant again for non-existent rent arrears of Kshs 1,295,000/- plus Advocates costs of Kshs 30,000/-. The said Auctioneers proclaimed the Appellants goods on 13. 07. 2015. This prompted the Appellant to file Milimani Commercial Civil Suit No. 4210 of 2015; Systemedia Technologies Limited –Vs- Upstate Auctioneers. The Appellant obtained interim injunctive orders that were extended on several occasions.

8. That while interim injunctive orders restraining the Respondents from auctioning the Appellant were still pending, the 1st Respondent despite knowing of the existing orders instructed the 3rd Respondent Moran Auctioneers to proclaim the Appellant’s goods for Kshs 1,615,000/-.

9. It was further submitted that in a ruling dated 22. 03. 2017 at page 106 in respect of an Application dated 10. 11. 2016 at page 88-105 of the Record of Appeal, the same Court Hon. Issac Orenge (SRM) at page 106-107 of the Record, notes that the Appellant’s goods were proclaimed despite the existence of Court orders and the Appellant paid suffering loss of Kshs 1. 6 million plus Auctioneers Fees. The Respondents conceded to receiving payment at page 107 of the Record and that the Court will hear the matter and determine the Appellant’s loss. The 1st Respondent also indicated that the distress was lawful whereas not.

10. It was further submitted that the court also said that a ruling was delivered on 25th October but does not indicate in which year the ruling was delivered. The 1st Respondent did not respond to the Appellant’s Advocates request to have the contested sum of Kshs 1,615,000/= deposited in a joint interest earning account agreeable to the respective Advocates and after the 1st Respondent and their agents unlawfully proclaimed the Appellant’s goods and were irregularly paid a whopping total of Kshs 1,895,000/- through coercion and intimidation things settled a bit but their intention to irregularly and unlawfully swindle as much as they could from the Appellant by all means continued.

11. It was also the Appellants submissions that, the 1st Respondent again vide a letter dated 24. 05. 2017 at page 147 of the Record unilaterally and arbitrarily without any notice or consultation indicated as follows:- “kindly note that the ‘new rent’ for property L.R. No. 82/388 Sunrise Donholm – Nairobi effective 1st April, 2017 is Kshs 150,000/- per month which your client is yet to pay.” This translates to a whooping Kshs 450,000/- per quarter. “We are alive to the fact that since April, 2015 your client has been paying quarterly rent of Kshs 114,750/- clearly conceding to deductions by the Appellant to foot the Appellant’s outlays on land rent, land rates, electricity and water bills.” The increment is pursuant to clause 3 (g) of the lease which again is not couched in mandatory terms. There was no basis of any comparative going rent for the surrounding premises used as a basis by the 1st Respondent.

12. The Appellant contended that again the said letter was unlawful for reasons that it purported to increase rent unilaterally, arbitrarily and monthly and that despite the Appellant having paid rent up to date they were slapped with backdated/retrospective increase of rent that were termed as rent arrears when it had no rent arrears.

13. A further letter from the 1st Respondent’s Advocates dated 15. 06. 2017 amplified the 1st Respondent’s unlawful and irregular acts. That the 1st Respondent’s lawyers unilaterally suggested that quarterly rent had been agreed from Kshs 450,000/- to Kshs 200,000/-. Further the suggestion that despite agreeing to a quarterly rent of Kshs 200,0000/- the 1st Respondent’s lawyers seem to suggest that the surrounding premises in Donholm fetch a monthly rent of Kshs 500,000/- yet even to date (2022) there is no three (3) bedroomed house with servants’ quarters in that area that can fetch a monthly rent of Kshs 500,000/- as grossly suggested by the 1st Respondent’s Advocates.

14. It was submitted that this fresh intrusion/cause of action obligated the Appellant to file a fresh suit on 21/06/2017 together with a motion dated 21. 06. 2017 being Milimani CMCC No. 4457 of 2017 Systemedia Technologies Limited vs Grace Matheka, that is now the direct gist of the present Appeal. The appellant obtained interim orders/status quo orders to forestall any execution pending the hearing and determination of the Appellant’s/Plaintiff’s Notice of Motion Application dated 21. 06. 2017. The two cases Milimani CMCC 4210 of 2015 and 4457 of 2017 were eventually consolidated. In the said Replying Affidavit of Grace Matheka at paragraph 12, page 255 of the Record of Appeal. In the said Replying Affidavit at paragraph 11 the 1st Respondent admit under oath receiving payment of Kshs 1,615,000/-

15. It was also the Appellant’s submissions that on 02. 03. 2018, the Appellant was waiting for delivery of ruling on its notice of motion application dated 21. 06. 2017, at page 40 of the Supplementary record of appeal the Appellant’s Counsel Mr. Atonga clearly prayed for a ruling date in respect of an application dated 21. 6.2017 but the Trial court inadvertently noted 21. 7.2017. That notwithstanding, the entry point of faulting the Trial Court’s ruling of 02. 013. 2018 is that at paragraph 1 thereof, it wrongly captures the wrong application as one dated 23. 07. 2015 instead of the Appellant’s Notice of Motion Application dated 21. 06. 2017.

16. Further there are two (2) different rulings both dated 02. 03. 2018 (one certified the other not certified) in respect of two different applications that the material one dated 21. 06. 2017 filed by the Appellant.

17. The 1st Ruling dated 02. 03. 2018 is at page 200-203 of the Record of Appeal. It is in respect of an alleged Notice of Motion dated 10. 11. 2016. It was submitted that the Trial Court erred fundamentally and had a premeditated outcome in mind since it had delivered a ruling on a similar application dated 10. 11. 2016 on 22. 03. 2017. This ruling is at page 8 to 10 of the Supplementary Record of Appeal. It was further submitted that there cannot be two rulings in respect of the same application and to this extent the trial court erred. The court could not issue a ruling in 2018 on a similar application that it had issued a ruling in 2017.

18. The Appellant contended that the 2nd ruling which we also challenged is the Certified ruling similarly dated 02. 03. 2018 at page 11-14 of the Supplementary Record of Appeal in respect of a motion dated 23. 07. 2015 and that the subordinate court should have issued a ruling in respect of the Appellant’s Motion dated 21. 06. 2017 and not the motion dated 23. 07. 2015 which the Respondents had all along submitted had been overtaken by events yet here was a prima facie fresh intrusion of the Appellant’s rights under the lease.

19. It was also the Appellant’s contention that at paragraph 3 of the certified ruling of 02. 03. 2018, page 13 of the Supplementary record of appeal, the trial magistrate says that “there was default on the part of the Defendant/respondent” yet again in the same paragraph he states that “the defendant has demonstrated that there was default on the part of the application that payment was being made.” This is contradictory especially noting that in respect of the application dated 23. 07. 2015 the respondents indicated to the court that the Respondents had executed and Appellant had already paid.

20. The Appellant faulted the lower court for keeping a blind eye to the fact that the Appellant, had settled the backdated unilateral increments and being misguided in finding that the Appellant had not approached the court with clean hands. The lower court was faulted for failing to determine the question whether the new rent increment arrears demanded by the 1st Respondent were justified. Reliance was placed on the case of Kassim Manji & Sons Ltd –Vs- Farid Al – Maary & Another (2009) eKLR.

21. The court was urged to allow the Appeal and grant the following orders.a.The 1st Respondent refunds the Appellant the sum of Kshs 1,895,000/- unlawfully and irregularly paid to the 1st Respondent and its agents/servants together with interest at 13% thereon applicable at commercial rates from 11/11/2016 (when the same was paid) to date and till payment in full.b.The sum of Kshs 2,688,836/- expended by the Appellant to repair and renovate the premises into a habitable state.c.The Lease Agreement having terminated by effluxion of time, the 1st Respondent refunds the security deposit of Kshs 135,000/- paid to her by the Appellant considering the Appellant renovated and improved the premises in 2019 after termination of the lease.d.The security deposit of the Appeal being Kshs 1,000,000/- paid by the Appellant to the court on 11. 09. 2018 be released to the Appellant forthwith.e.The appellant be granted costs and interests of the Appeal.

22. The Appeal was resisted by the Respondents. The Respondents filed written submissions dated 12th July 2022 through M/s Morara Ngisa and Co. Advocates. Counsel for the Respondent pointed out that the subordinate court found that by its conduct the Appellant had not met the approval of court of Equity since it had defaulted in paying rent and had not made any effort to contact the Respondents. Counsel outlined the following issues for consideration by the court: -a.Whether the record bears out a prima facie case presented by the Appellant which would have warranted the exercise by the subordinate court of discretion in its favour (Ground 3,5,6,7,8,9 and 11 of the Appeal).b.Whether the record bears out a demonstration by the Appellant that it stood to suffer irreparable injury if the orders it sought before the subordinate court were not granted, to warrant the exercise by the subordinate court of discretion in its favour (Ground 10 of the Appeal)c.Whether the record bears out facts to show that the balance of convenience titled in favour of the subordinate court granting the orders sought by the appellant.

23. On the prima facie case, Counsel submitted that the subordinate court exercise its discretion in dismissing the Appellant’s applications and refusing to grant any interim orders because the Appellant had failed to establish a prima facie case. The Appellant was in breach of the lease agreement signed between the parties and payable to the 1st Respondent as per pages 43, 86 and 164 of the record of Appeal. The Appellant had conceded that it was in rent arrears as evidence at page 50, 56, 107, 103 and 143 of the Record of Appeal and further that the Appellant conceded to the 5% rent increase which was agreed between the parties and hence the appellant is estoped from making any contrary assertions. It was also submitted that the Application dated 21st June 2017 was res judicata. The Appellant had filed similar applications in CMCC No. 4210 of 2015 which had been dismissed. In support of this position, the Respondents made reference to the cases of Macfoy –vs United Africa Co. Ltd (1961) 3 All ER 1169 and Popi-In (Kenya) & 3 others -vs- Habib Bank A.G. Zurich (1990) eKLR. The court was urged to dismiss grounds 3, 5, 6, 7, 8, 9 and 11 of the Appeal for lack of merit.

24. On the issue of irreparable harm, it was submitted that the Appellant had failed to show in any way, what irreparable harm it stood to suffer if the interim orders it sought were to be granted. The rent arrears had been quantified and as such an amount which has been quantified if paid cannot be said to cause a party irreparable or irredeemable damage. The following cases were cited in support of this position, Chateur Radio Service –vs- Pronogram Limited (1994) eKLR, Joseph Itinga Gati –vs- Barclays Bank (K) Ltd (2001) eKLR, Pius Kipchirchir Kogo –vs- Frank Kirudi Tenai (2018) eKLR and Bedrock Security Services Ltd –vs-Nzoia Sugar Company Limited (2013) eKLR.

25. On the balance of convenience, it was submitted that the court judiciously exercised its discretion in dismissing the Application because the Appellant failed to show in any way that the balance of convenience titled in its favour, Counsel urged the court to reject the Appeal.

26. I have considered the entire record of the Appeal. I have also considered the parties’ respective submission in this appeal. The Appellant’s itemized 11 grounds of appeal. In determining the issues raised in the Appeal, and as submitted by the Respondents in their submissions, this court is cognizant of its duty on a first appeal as set out in the case of Selle & Another V Associated Motor Boat Co. Ltd & Others (1968) EA 123, cited with approval in China Zhongxing Construction Company Ltd V Ann Akuru Sophia (2020) eKLR, in the following terms:“I accept Counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this curt is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif vs Ali Mohamed Sholan (1995). 22 E.A.C.A, 270).”

27. In the same case of China Zhongxing Construction Company Ltd vs Ann Akuru Sophia (2020) eKLR, the court noted that the Court of Appeal for East Africa took the same position in Peters vs Sunday Post Limited (1958) EA 424 where Sir Kenneth O’Connor stated as follows:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their lordships in the House of Lords in Watt V Thoma (1) (1974) A.C. 484. “My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not say that a judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

28. In view of the citations propounded above, three complementary principles ensue; first, on first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; second, in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and third, it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

29. As has also been restated in the case of United India Insurance Co. Ltd V East African Underwriters (Kenya) Ltd (1985) E.A., a court sitting on Appeal will not interfere with a discretionary decision appealed from simply on the ground that the court, if sitting at first instance, would or might have given different weight to that given by the court to the various factors in the case.

30. This court sitting of Appeal is only entitled to interfere if one or more of the following matters are established; first, that the court misdirected himself in law; secondly, that the court misapprehended the facts; thirdly, that the court took account of considerations of which he should not have taken account; fourthly, that the court failed to take account of considerations of which he should have taken account, or fifthly, that the court’s decision, albeit a discretionary one, is plainly wrong.

31. From the foregoing, the mandate of this court in the present instance is to evaluate the factual details of the case as presented in the trial court, analyze them and arrive at an independent conclusion.

32. In my humble view, the following issues stand out as key issues for determination which can dispel the Appeal. These are: -i.Whether the Lower Court erred in the exercise of its discretion in declining to grant the appellant the interlocutory reliefs sought.ii.What are the appropriate reliefs to issue herein?

Issue No 1Whether the trial court erred in the exercise of its discretion in declining to grant the Appellant’s the interlocutory reliefs sought. 33. As earlier observed, one of the issues in this interlocutory appeal is whether the lower court erred in the exercise of its discretion in declining to grant the appellant the interlocutory relief of an injunction. The lower court was invited to exercise discretionary jurisdiction. Sir Charles Newbold P. outlined the following principle in Mbogo & Another v Shah [1968] EA 98 which guides our appellate courts when exercising appellate jurisdictions over discretionary decisions of lower courts: “A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”

34. The Court of Appeal emphasized this principle in Nguruman Limited v Jan Bonde Nielsen & 2 others C A No 77 of 2012 [2014] eKLR in the following words:-“This dictum underlines what is well settled in our laws that as an appellate court, this court has a limited function in an appeal from the grant or refusal of an order of injunction issued by the court below. It has no jurisdiction to exercise an independent original jurisdiction of its own. It must defer to the exercise of jurisdiction by the judge in the court below and must not interfere with it merely upon the ground that the members of this court would have exercised the discretion differently.”

35. The appellant was required to satisfy the criteria upon which jurisdiction to grant an interlocutory injunction is granted. The criteria was outlined in the often cited case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate to the court that if the interlocutory injunctive relief is not granted, he would stand to suffer damage that may not be indemnified through an award of damages. Third, should the court have doubt on the applicant’s satisfaction of both or either of the above requirements, the application is to be determined based on the balance of convenience. Last, at the stage of disposing the plea for an interlocutory injunction, the court seized of the application does not make definitive or conclusive pronouncements on the key issues in the suit.

36. In Patriotic Guards Ltd v. James Kipchirchir Sambu [2018]eKLR the court stated as follows:“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.”

37. In Patel v. E.A Cargo Handling Services Ltd.(1974) EA the court stated that:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgement he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.”

38. In the instant Appeal, the material on record shows that the Appellant was in breach of the lease agreement signed between the parties by failing to pay rent as and when the same fell due and payable to the 1st Respondent. This was also evident from pages 43, 86 and 164 of the Record of Appeal. The Appellant too had conceded being in rent arrears. The Appellant had not discharged its contractual obligation given that they wanted an equitable relief. It was its obligation to comply with the terms of the lease agreement. It did not demonstrate any compliance on its part. In the above circumstances, I do not think that the Appellant satisfied the criteria for grant of an interlocutory injunction and as such the trial court properly exercised its discretion in declining to grant the orders sought.

Issue No. 2What are the appropriate reliefs to issue herein? 39. Having found that the Appellant’s had not met the conditions for grant of the interlocutory relief that they sought at the lower court, it is the finding of this court that the reliefs sought in this appeal cannot be granted.

40. On the issue of costs, by didn’t of the provisions of Section 27 of the Civil Procedure Act, Costs are at the discretion of the court. In the instant appeal, having considered that this is an appeal from interlocutory proceedings and the matter is still pending before the subordinate court, I will direct each party to bear own costs of the appeal.

41. In conclusion, I do not find any merit in the appeal and I hereby make the following orders:a.The Appeal is devoid of merit and is dismissed.b.Each party to bear own costs of the Appeal.

42Judgment accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29THJUNE 2023E.K. WABWOTOJUDGEIn the presence of:Mr. Atonga for the Appellant.Ms. Morara for the Respondents.Court Assistant – Caroline Nafuna.