[2004] KEHC 1956 (KLR)
The court found that the applicant had already been evicted from the premises, making a prohibitory injunction inappropriate; a mandatory injunction would have been the proper relief if at all. The applicant failed to provide evidence of tenancy or payment of rent, and did not establish a prima facie case with a...
Source-derived case information.
- Citation
- [2004] KEHC 1956 (KLR)
- Parties
- Applicant: Thomas N Maosa; Respondent: Kharamshi Meghji Haria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 327 of 2004
- Procedural Posture
- Chamber Summons Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Injunctive Relief, Landlord Tenant Disputes, Prima Facie Case, Adequacy of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Thomas N Maosa
Applicant
Kharamshi Meghji Haria
Respondent
Procedural Posture
Chamber Summons Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondent from evicting him from the suit premises.
- 2 Whether the applicant has established a prima facie case with a probability of success.
- 3 Whether damages would be an adequate remedy for the applicant.
Ratio Decidendi
The court found that the applicant had already been evicted from the premises, making a prohibitory injunction inappropriate; a mandatory injunction would have been the proper relief if at all. The applicant failed to provide evidence of tenancy or payment of rent, and did not establish a prima facie case with a probability of success. Furthermore, the applicant did not demonstrate why damages would not be an adequate remedy. As such, the threshold for granting an interlocutory injunction as set out in Giella vs Cassman Brown & Company was not met. The application was therefore dismissed with costs to the defendant, and any interim orders in favour of the plaintiff were vacated.
Court Disposition
application dismissed with costs to the defendant
Orders
- The Chamber Summons application is dismissed with costs to the defendant.
- Any interim orders subsisting in favour of the plaintiff are vacated.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO 327 OF 2004 THOMAS N MAOSA …………………………...…………. APPLICANT VERSUS KHARAMSHI MEGHJI HARIA ……………...………. RESPONDENT RULING
This is a Chamber Summons application to restrain the defendant “from evicting the plaintiff from premises known as Shop Number 2 at Revlon Plaza, 3rd Floor, along Kimathi Street/Tubman Road on Land Reference Number 209/2485 till the final determination of this suit and/or further orders of this court.”
It is supported by the Applicant’s affidavit sworn April 5, 2004 in which he depones that he is the defendant’s tenant in the suit premises, although he does not have a written lease. He says that he was locked out of the premises sometime before February 10, 2004.
If, by his own admission, he has already been evicted from the premises, he should be seeking a mandatory injunction, not a prohibitory injunction that he seeks. Even if this court were to grant an interlocutory injunction it would serve no useful purpose. In any event, he is not entitled to the order sought based on the information presented to this court. He says he is a “tenant” in the suit premises, but has provided no proof of tenancy. He says he has been paying rent, but has exhibited no receipts. He has not established a prima facie case with a probability of success, and has not demonstrated how and why damages would not be an adequate remedy (See Giella vs Cassman Brown & Company (19 73) EA 358) .
Accordingly, I dismiss this application with costs to the Defendant, and vacate any interim orders subsisting in favour of the Plaintiff.
Dated and delivered at Nairobi this 11th day of May, 2004.
ALNASHIR VISRAM JUDGE