Felister Wanjiru Mukuria & another v Abdullahi Hussein Mohamed Hussein [2013] KEHC 6105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENTAL AND LAND DIVISION

ELC SUIT NO. 815 OF 2012

FELISTER WANJIRU MUKURIA...………........….….…..1ST PLAINTIFF

PETER NJEHU………………………………….......……2ND PLAINTIFF

-VERSUS-

ABDULLAHI HUSSEIN MOHAMED HUSSEIN…......…….DEFENDANT

RULING

The Plaintiffs have moved the court by way of an amended notice of motion dated 14th December 2012 brought under sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act, Order 40 Rules (1) and (4) and Order 51 Rules (1) and (3) of the Civil Procedure Rules. The Plaintiffs are seeking an order that the Defendant either by himself and/or his agents, servants or assigns be restrained by an interim injunction from carrying out any business, leasing and or in any other way, interfering with the Plaintiff/Applicants’ possession and ownership of plot No. 36/1/613 Eastleigh Section 1, pending the hearing and determination of this suit.

The application is supported by an affidavit sworn by the 1st Plaintiff on 4th December 2012 where the Plaintiffs state that they are the bona fide owners of Plot No. 36/1/613 Eastleigh Section 1 and have annexed as evidence a copy of a deed of conveyance entered between Gabriel Mukuria Njehu on the one part and Felista Wanjiru and Peter Njehu on 17th March 1970. The Plaintiffs have stated that on 4th September 2007, they entered into a tenancy agreement with the Defendant for the lease of plot No. 36/1/613 Eastleigh Section 1 at a cost of Kshs.60,000/= per month for a period of 5 years. It is the Plaintiffs case that subsequently, they entered into another agreement with the Defendant on 28th August 2008 which permitted the Defendant to demolish the temporal structures annexed to the main building and carry out improvements at his own costs. A copy of a lease agreement dated 28th  August 2008 entered into by the 1st Plaintiff and the Defendant has been attached to the application.

The Plaintiffs have alleged that the Defendant had been paying rent promptly until the lease agreement expired on the 4th September 2012 when the defendant requested for a further period of one month to move out of the suit premises. The Plaintiffs have attached a copy of a letter dated 5th October, 2012 informing the Defendant that his lease on the suit property was to expire on 5th November, 2012.

The Plaintiffs claim that the Defendant refused to pay the monthly rent for the month of October 2012 and also refused to move out of the suit premises. The 1st Plaintiff has contended that she is a sickly lady with a heart condition, with no other source of income other than the rental income from the suit premises to cater for her treatment and daily sustenance. It is the Plaintiffs case that despite issuing a demand and notice to vacate, the Defendant who continues to draw a monthly rent of Kshs.220/=(sic) from the suit premises has refused/failed to adhere to the demand.

The 1st Plaintiff in response to the Defendant's replying affidavit, swore a further supporting affidavit on 14th September 2012 wherein she stated that prior to the construction of six semi-permanent structures in her premises, there were 6 other semi-permanent structures on the ground floor which had been rented out. The Plaintiffs have contended that the semi-permanent structures put up by the Defendant on the 1st floor of her former structures do not cost more than Kshs.50,000/=.

It is the Plaintiffs' case that  the Defendant was not evicted but that his term of tenancy expired and further, that the Defendant had destroyed most items at the premises. According to the Plaintiffs, the Defendant had been in rent arrears for the month of October and November 2012, and had not paid one month’s rent deposit, and this prompted the Plaintiffs to engage the services of auctioneers. While responding to the Defendant's averments that they acted in a manner that was in breach of the lease agreement by ensuring that the Defendant did not have water, the Plaintiffs averred that the Defendant had tampered with the water meter and was getting direct supply of the water leading to disconnection by the Nairobi City Council. The Plaintiffs reiterated that the Defendant caused massive destruction to the suit premises and averred that they would be greatly prejudiced unless the damage was assessed and a set-off reached.

The Defendant in a replying affidavit sworn on 7th December 2012 admitted having been the Plaintiffs' tenant pursuant to the lease agreement made on the 6th of September 2007, in respect of Plot No. 36/1/613 Eastleigh Section 1. Further, the Defendant stated that in a further agreement dated 28th of August 2008, parties agreed that the Defendant would construct semi-permanent structures on the plot at his cost and further, that he was at liberty to demolish the structures and carry the materials. The Defendant has annexed a copy of a renovation fee receipt for Kshs 4,000. 00 issued by the Nairobi City Council on 5th November 2012 and states that he constructed semi-permanent structures on the plot at a cost of Kshs 500,000/= .

It is the Defendant's case that the Plaintiffs have evicted him from the suit premises without allowing him to demolish the structures he had built, or   compensating him for the same. The Defendant avers that he paid monthly rent in advance for a period of six months as agreed and annexed as evidence a copy of the Bank deposit for Kshs 360,000/= The Defendant has contended that the Plaintiffs sent auctioneers to distress for rent for a sum of Kshs 206,024/= which was not owing since parties had agreed that part of the two months deposit which the Plaintiffs were holding would be used as rent for the month of October 2012. According to the Defendant, the Plaintiffs were benefitting from his investment by drawing a monthly rent of Kshs 220,000/= to his detriment, and the Defendant averred that he should be allowed to demolish the semi-permanent structures.

Parties relied on submissions filed during the hearing of the application on 20th May 2013. The Plaintiffs' Counsel in submissions dated 10th April 2013 argued that the lease agreement which was to last for 5 years was  to expire on the 4th September 2012,  a fact that the Defendant did not rebut in his replying affidavit. Counsel submitted that the Plaintiffs made it clear to the Defendant that his lease had expired and that the Plaintiffs did not intend to extend the lease and therefore, that the Defendant was a trespasser in the Plaintiffs' property. The Plaintiffs stated that they had satisfied the requirements established in the case of Giella –vs – Cassman Brown & Co. Ltd,(1973) E.A 358.

The Defendant’s Counsel in his submissions dated 17th May 2013 reiterated the facts as set in the replying affidavit and argued that the Plaintiffs had not fulfilled the salient principles to be entitled for grant of temporary injunction. Counsel submitted that it was a term of the agreement entered into on 28th August, 2012 that at the end of the lease agreement, the Defendant would be at liberty to demolish the improvements he had carried out on the property.

It was further argued that the Defendant was only interested in the enforcement of the said term since the Plaintiff continued to benefit from the improvements by drawing monthly rent of over Kshs 50,000. 00 to the detriment of the Defendant. Lastly, counsel submitted that no evidence was tendered to prove that the Defendant tampered with the water meter and further, that the receipts produced by the Plaintiffs were in contravention of the  Stamp Duty Act.

I have read and carefully considered the pleadings, evidence and submissions by the parties to this application. The issue for determination is whether the Plaintiffs have established a prima facie case for an injunction to issue in terms of the requirements in Giella v Cassman Brown & Co. Ltd. [1973] EA 358. These are that the applicant must establish a prima facie case, and that he or she would suffer irreparable loss which may not be compensated by an award of damages. If the Court finds that the two requirements are not satisfied, it may decide an application on the balance of convenience.

It is not disputed that the Plaintiffs are the owners of the suit property and they have brought evidence of ownership.  From the evidence given by both the Plaintiff and Defendant it is evident that the Defendant is no longer in possession of the suit premises. The Defendant in his affidavit claims he was  evicted, while the Plaintiffs in their further supporting affidavit claims that his tenancy expired and he vacated the suit premises. As it is admitted by both parties that lease agreement between the Plaintiffs and Defendant has expired, and that the Defendant is no longer in possession of the Plaintiffs’ premises, I find that a prima facie case has been established.

It is however also evident that there is a dispute about the ownership of the semi-permanent structures on the suit premises that were constructed by the Defendant, and the compensation to be paid to him if any for the said structures. This is a dispute that can only be resolved after the Defendant has filed his claim in the proper manner, and the dispute heard and determined at full trial. In the meantime the suit properties need to be preserved pending the determination of the suit filed herein and of the Defendant’s claim if any.

The Plaintiffs Notice of Motion is therefore allowed in the terms of the following orders:

The Defendant either by himself and/or his agents, servants or assigns be and is hereby restrained from carrying out any business, leasing and or in any other way interfering with the Plaintiffs’ possession and ownership of plot No. 36/1/613 Eastleigh Section 1, pending the hearing and determination of the suit herein or until further orders.

The Plaintiffs shall not demolish, further develop or in any other manner interfere with the semi-permanent structures constructed by the Defendant on plot No. 36/1/613 Eastleigh Section 1 pending the hearing and determination of the suit herein or until further orders.

The costs of the Plaintiffs’ Notice of Motion shall be in the cause.

Dated, signed and delivered in open court at Nairobi this ____14th___ day of _____June____, 2013.

P. NYAMWEYA

JUDGE