Anita Mugambi v Meru County Investment & Development Corporation [2017] KEELC 2110 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT AT MERU

ELC NO. 76 OF 2016

ANITA MUGAMBI ............................................ PLAINTIFF

VERSUS

MERU COUNTY INVESTMENT

& DEVELOPMENT CORPORATION........DEFENDANT

R U L I N G

1. The application dated 14:06:16  seeks orders that

1. Spent.

2. That the Honourable Court be pleased  to issue an order of temporary injunction restraining the Defendant/Respondent , its agents/servants, assigns, representatives and/or anyone acting at its behest from terminating lease dated 1/3/2011, evicting and/or increased the rent over Massionate E erected on MUNICIPALITY /BLOCK/11/119 situated at Meru pending hearing interparties of this Application or pending further orders of this court.

3. That the Honourable  Court be pleased to issue an order of temporary injunction restraining the Defendant/Respondent , it agents/servants, assigns, representative and/or anyone acting at its behest from terminating lease dated 1/3/2011, evicting and/or increasing the rent over Massionate E erected on Municipality/Block/11/119 situated at Meru pending the hearing and determination of this suit.

4. That costs be borne by the Defendant/Respondent.

2. The grounds is support of the application are that

(a) That the Applicant  is a tenant  on MUNICIPALITY/BLOCK 11/119 comprising Massionates Block E respectively.

(b) That  the lease as executed by the Applicant dated 1/3/2011 does not bear a clause for termination.

(c) That by way of a notice dated 26/4/2016 the Respondent has purported to terminate a lease without due process.

(d) That the tenant has been performing  the obligations for the last 5 years.

(e) That it is in the interest of justice that the orders herein are sought.

3. Applicant has also filed a Replying Affidavit where she has deponed as follows:-

(1) That she is  the Applicant herein well versed with the facts of this matter and therefore competent to make and swear this affidavit.

(2) That by way of a lease agreement dated  1/3/2011 she occupied the defendant's premises known as BLOCK E at monthly rent of Kshs. 20,000/=.

(3) That the said lease does not bear a termination  clause  It was to run until 2021.

(4) Thats he has been  a faithful tenant  with the predecessors of the defendant for the last 5 years and counting.

(5) That she has never defaulted or breached any terms of the lease to date.

(6) That the lease agreement dated 1/3/2016 did not have a termination clause therein. The Plaintiff  was prepared to run the full term.

(7) That on the 26/4/2016 she  received a letter revising the rent to Kshs. 140,800/= plus service charge of Kshs. 28,160/= making a total of Kshs. 168,960/=. Attached thereon was a new lease agreement.

(8) That no sooner had the representation of the defendant settled in her mind than the Plaintiff received another letter dated  07/6/2016  ostensibly terminating the lease with effect from 07/07/2016 as the effective date

(9) That it is now clear to her that the defendant simply wants to evict her from the said building.

(10) That the defendant is disturbing her quiet and peaceful occupation.

(11) That the defendant's actions are  arbitrary, capricious and illegal and a ploy to make her leave the demised premiseswithout reasonable cause.

(12) That there being a valid and subsisting lease which is still running the defendant cannot toss her back and forth  at its whims and delight.

(13) That the defendant's  actions are unjustified and infringe on her right to affordable housing under Article 40 of the New Constitution.

4. In further support of her application, the applicant has availed the following documents for  Court's  perusal:

(a) The copy of lease agreement of 1. 3.11

(b) Letter dated 26. 4.16 containing revision of rent and service charges.

(c) Letter of 7. 6.16 terminating the lease.

5. The application is opposed via the Replying Affidavit of JOEL KINYUA IMITIRA where he has deponed as follows:-

(1) He is an adult male, and the Managing Director in the Defendant Company in this matter conversant with the facts of this case and authorized to swear this affidavit.

(2) He has read and understood  the defendant /applicant's Notice of Motion filed on 15th June, 2016 and supported by an affidavit sworn on the same day and a supplementary affidavit sworn on the 6th July, 2016 and he swears this affidavit in reply thereto.

(3) On 1st March 2011, the Plaintiff herein entered into a lease agreement with the former Meru County Council subsequently the Meru County Government . The premises are wholly owned by Meru County Government. The  Lease was in respect to House Number Block E erected on Title Number Municipality/Block 11/119-Meru (Hereinafter called 'the premises). On page 2 of the Lease, on General Covenants clauses, the Lease provided as follows on clause (1) and clause(5);

a."The rent shall be reviewed after every two  years;

b. "Any party wishing to alter this tenancy shall  give one month's notice or pay one month's  rent in lieu of notice."

(4) The Defendant instructed a registered valuer to prepare a report on fair and market rates for the premises.  The valuer vide report dated 20th January, 2016 advised that the premises can attract a rent of Kshs. 100 per square foot per month.

(5) Following advice of the Valuer, the Defendant reviewed rent in respect to the Premises to Ksh. 100 per square foot and further service charge of Kshs. 20 per square foot. The Plaintiff  was requested to execute new Tenancy Agreement.

(6) The Plaintiff declined to execute new Tenancy Agreement and also failed  to pay reviewed rent. The Defendant engaged a professional to advise it on fair and market rental value of the Premises.  The rental review was done in accordance with  Lease dated 1st March 2011.

(7) The Lease provided that the rent was subject to review after two (2) years. Since the Plaintiff took over the premises, over 5 years ago, the rent has never been reviewed. The Defendant , which is managing the premises, on behalf of Meru County Government  has not been receiving  rent  as per prevailing market rates . The Plaintiff has been paying Kshs. 20, 000 per month compared to market rates of Kshs. 168,960. The County Government  is losing Kshs. 148,960 per month.

(8) Vide letter dated 7th June 2016, the Defendant issued one (1) month to vacate the premises.  The notice was issued in accordance with clause 5 (General Covenants-page 2) of Lease dated 1st March, 2011. Thus the Plaintiff's assertion that the Lease did not contain termination clause is untrue and misleading.

(9) Defendant further avers  that a lessor has power to terminate a Lease under Section 56(a) of the land Act.  The Defendant terminated  the lease in accordance with clause on the Lease. It issued 30 days termination notice to the Plaintiff as required  under the Lease.

(10)  Defendant also states that:-

(a) That the Lease Agreement between the parties herein  having been  for ten (10) years was required under law to be  registered;

(b) According to Section 36 (2)  of the Land Registration Act, the Lease  Agreement having not been so registered , therefore means it cannot be regarded as a lease but as a mere contract;

(c) Lease having not been registered, the intention of parties  could not  have been to create long term lease;

(d) Thus, the lease could have been terminated by giving one (1)  month   notice of termination.  The rent is payable on monthly basis.

(11). The grant of the orders sought  by the applicant would infringe on the Defendant's proprietary rights. The Defendant has a right  to ensure maximum utility of the Premises. The Defendant is already incurring financial loss as there are many potential tenants ready to come into the Premises and pay the rent at current commercial rate.

(12).It is only fair and in the interest of justice that the current application be dismissed, with costs.

6. Respondent has also availed supporting documents as "JKI -5".

7. Way back on 06:07:16, the Plaintiff had obtained Injunction Orders against the defendant. The  said orders have been extended from time to time until 27. 4.17.

The issue for determination at this stage is only one. Whether the application meets the criteria set out in the case of Giella Versus Cassman Brown & Co Ltd. [1973] EA 358. The set criteria is;

(a) Demonstration of a Prima Facie case with a high probability of Success.

(b) Demonstration  that the Plaintiff stands to suffer irreparable loss unless the temporary injunction sought is granted.

(c)If the Court is unable to determine the application based upon the first two principles, it will decide it upon a balance of convenience.

8. PRIMA FACIE CASE

On this issue, the Court can only consider whether the applicant has established a  strong case. Her anchor  is  the agreement dated

01:03: 2011 between her and County Council  of Meru. Applicant  avers that the agreement  has no termination clause. Respondent on the other hand makes reference  to the general  covenant clause.

1.  "The rent shall be reviewed  after every two years.

5   "Any party wishing to  alter this tenancy  shall give one month's  notice or pay one month's rent in lieu of  Notice"

As  submitted by the applicant in National Bank  Versus  Pipe Plastic Sarkilit (K) Ltd & Another. Civil Appeal No. 95 of 1999.

" A  Court of Law cannot re rewrite a contract between the parties as the parties are bound by the terms of their contract , unless  coercion,  fraud or undue  influence ".

9. This Court will not purport to interpret the terms of the agreement at this stage.  The Court will be guided by what is  plainly provided.  There is indeed a provision for alteration of the tenancy whereby a one month's notice is to be given.  The Respondent did issue such a notice which the applicant failed to comply with.  The  fact that the new proposed rent is high is not a  factor to be considered at this stage as the  contract is silent on the amount of rent to be considered during the alteration  of the tenancy.

I therefore find that a prima case has not been established.

On this criteria, application fails.

10. Does the applicant stand to suffer irreparable damage?. The applicant has not demonstrated  thats he stands to suffer irreparable harm or that damage, would not be an adequate compensation.  To this end, I find that the  case  cited by defence  Vivo Energy Kenya Limited  versus Maloba  Petrol Station  Limited & 3 others [2015] eKLRis applicable. In that case, Reference was made to the decision inNguruman  Limited-versus Jan Bonde Nielsen & 2 other,Civil Appeal No. 77 of 2012 where it was held:

".....If  damages recoverable in law is an adequate  remedy and the Respondent is capable  of  paying , no interlocutory order of injunction should normally be granted. however  strong the applicant's  claim may appear  at that stage..."

11. The applicant has not advanced  any argument to the effect that  Respondent would not be in a position to pay damages. The application fails on this criteria.

12. Balance of convenience. As the matter stands now, applicant is apparently not paying  any rent. She is also the  one enjoying the Injunctive Orders . The Respondent and  by extension the public is incurring losses yet the premises belong to the Respondent. The balance of convenience does not tilt in favour of the applicant. The application fails on this ground.

13. CONCLUSION

Finally I find that the Injunctive Orders were  granted on 11. 07. 16. The provisions of order 40r 6 of Civil Procedure Rules states that " Where a suit in respect of an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the Court orders otherwise".

In the instant case, the Injunctive Orders have lapsed by operation of the rules of procedure.

I find that the application has no merits. The same is dismissed with costs to  Respondent.  The Injunctive Orders given earlier on are  hereby vacated .

DELIVERED, DATED AND SIGNED AT MERU THIS  19TH DAY  OF JULY, 2017 IN THE PRESENCE OF:

C:A Janet

Miss NJenga for Plaintiff

Thangicia  h/b for Kiruki for defendant present

HON. L. N. MBUGUA

JUDGE