Savoan Limited v Azalea Holdings Limited [2025] KEELC 102 (KLR)

Savoan Limited v Azalea Holdings Limited (Environment & Land Case E416 of 2024) [2025] KEELC 102 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 102 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E416 of 2024

JO Mboya, J

January 16, 2025

Between

Savoan Limited

Applicant

and

Azalea Holdings Limited

Respondent

Ruling

Introduction and Background 1. The Plaintiff/Applicant [herein referred to as the Applicant] has approached the honourable court vide Notice of motion application dated the 11th October 2024 brought pursuant to the provisions of Section 76 (1), 77 of the Land Ad, 2012. Order 40 Rule 1, Order 51 Rule 1 of the Ciril Procedure Rules, 2010 Section 13(1), (2), (7) (a)c (i) and 19 of the Environment and Land Court Ad, 2011, wherein same [Applicant] has sought for the following reliefs;Ex-parte:i.The Honourable Court do certify this matter as urgent and proceed to hear it on priority basis.ii.Pending the hearing and determination of the application inter partes, the Honourable Court do issue a temporary injunction restraining the Defendant its servants, agents, employees and any persons acting under its authority from seizing, usurping, levying distress upon, confiscating, holding, alienating, auctioning, selling, disposing of or in any manner dealing with the Plaintiffs properties in the suit premises to wit commercial unit No. LS. 01 and LS. O1T erected on the lower ground floor of the shopping mall known as the Hub, Karen on property L.R No. 1159/466. iii.Pending the hearing of the Application inter partes, an order be directed to the Defendant, its servants, agents, employees and any persons acting under its authority to allow the Plaintiff unlimited access to the suit premises to wit commercial unit No. LS.01 and LS. O1T erected on the lower ground floor of the shopping mall known as the Hub, Karen on property LR No. 1159/466 for purposes of removing all her equipment, fixtures and fittings in the suit premises.iv.The orders issued herein be served upon the OCS Kilimani Police Station to ensure compliance and maintenance of peace.Inter-partes:v.Pending the hearing and determination of the suit, the Honourable Court do issue a temporary injunction restraining the Defendant its servants, agents, employees and any persons acting under its authority from seizing, usurping, levying distress upon, confiscating, holding, alienating. auctioning, selling, disposing of or in any manner dealing with the Plaintiff’s properties in the suit premises to wit commercial unit No. LS. 01 and LS. O1T erected on the lower ground floor of the shopping mall known as the Hub, Kareu on property L.R No. 1159/466. vi.Pending the hearing of the suit, an order be directed to the Defendant, its servants, agents, employees and any persons acting under its authority to allow the Plaintiff unlimited access to the suit premises to wit commercial unit No. LS.O1 and LS. O1T' erected on the lower ground floor of the shopping mall known as the Hub, Karen on property LR No. 1159/466 for purposes of removing all her equipment, fixtures and fittings in the suit premises.vii.Costs of this Application be provided for.

2. The instant application anchored on various grounds which have been enumerated in the body thereof. In addition, the application is supported by the affidavit of one Joan Ndunda [Deponent] sworn on the 11th October 2024 and to which the deponent has annexed a total of 15 documents including a copy of lease agreement dated the 21st March 2024.

3. Upon being served with the instant application, the Respondent filed a Replying affidavit sworn by one, namely, Washington Olima and which Replying affidavit is sworn on the 31st October 2024. The Respondent has contended inter-alia that despite entering into and executing the lease agreement dated the 21st March 2024, the Applicant herein failed and/or neglected to abide by the terms contained thereunder.

4. Additionally, the Respondent has contended that the Applicant herein accrued and accumulated rent arrears and as a result of the accumulated rent arrears, the Respondent herein generated and issued a demand notice to the Applicant in accordance to clause 10. 1 and 10. 2 of the Lease agreement. In particular, the Respondent has referenced and highlighted the demand notice[s] dated the 10th June 2024; 6th April 2024 and 6th September 2024, respectively.

5. The instant application came up for hearing on the 13th November 2024; whereupon the advocates for the parties covenanted to canvass and dispose of the application by way of written submissions. To this end, the court proceeded to and circumscribed the timeline for filing and exchange of the written submissions.

6. The applicant filed two [2] sets of written submissions dated the 12th November 2024; whereas the Respondent filed written submissions dated the 26th November 2024. For coherence the three [3] sets of written submissions form part of the record of the court.

Parties Submissions: a. Applicant’s Submissions: 7. The Applicant filed two [2] sets of written submissions dated the 12th November 2024. Suffice it to state that the Applicant adopted the grounds contained at the foot of the application and also reiterated the averments contained in the body of the supporting affidavit. Furthermore, learned counsel for the Applicant thereafter highlighted and canvassed four [4] salient issues for consideration.

8. Firstly, Learned counsel for the Applicant has submitted that the Applicant herein had executed heads of terms pertaining to the demised premises in the December 2021. Thereafter it has been contended that the Applicant entered upon and took possession of the demised premises situate on L.R No. 1159/456.

9. Additionally, learned counsel for the Applicant has submitted that the Applicant and the Defendant/Respondent herein subsequently entered into and executed a lease agreement dated the 21st March 2024. For good measure, it has been posited that the lease agreement was for a duration/term of 10 years.

10. Be that as it may, learned counsel for the Applicant has conceded that the Applicant herein lapsed into rent arrears. In particular, it has been acknowledged that the rent arrears amounted to Kes.7, 446, 251. 26/= Only, as at 30th July 2024. In this regard, Learned Counsel has posited that the Respondent thereafter proceeded to and served the Applicant with a demand notice dated the 6th August 2024.

11. Other than the foregoing, learned counsel for the Applicant has submitted that the Respondent has thereafter proceeded to and regained/retaken possession of the demised premises and effectively evicted the Applicant from the premises. Nevertheless, it has been contended that the re-taking of possession of the demised premises was carried out and or undertaken in contravention of the provisions of Section 75 of the Land Act 2012.

12. It was the further submissions by and on behalf of the Applicant that having exercised the right to re-take possession of the demised premises, without complying with the provisions of Section 75 of the Land Act, the entire lease agreement is deemed to have terminated and/or determined.

13. Learned counsel for the Applicant has also submitted that other than the breach and violation of the provisions of Section 75 of the Land Act 2012, the Respondent herein also failed to comply with and/or adhere to the provisions to clause 10. 1.1 and 10. 3 of the Lease agreement. In this regard, it has been contended that the impugned actions by the Respondent were/are illegal and unlawful.

14. To this end, learned counsel for the Applicant has also submitted that arising from the violations of Sections 75 of the Land Act 2012 and by extension the provisions of the lease agreement, the Applicant herein stands discharged from its obligation[s] under the lease agreement. In particular, it has been contended that the Applicant herein has been discharged from the obligation[s] as pertains to the payment of the rent arrears; and any other accruing rents in respect of the demised premises.

15. Flowing from the foregoing arguments, learned counsel for the Applicant has submitted that the Applicant herein has established and demonstrated the existence of a prima facie case with probability of success.

16. Secondly, learned counsel for the Applicant has submitted that upon entering into and executing the heads of terms with the Respondent herein, the Applicant took possession of the demised premises and established a high-end restaurant thereon which has since been operational. Nevertheless, it has been contended the Respondent herein has illegally and irregularly re-entered upon the demised premises and locked the premises. In this regard, it has been contended that the actions by and on behalf of the Respondent have deprived the Applicant of not only the use of the demise premises; but also her [Applicant’s] equipment’s, fittings and fixtures that were installed in the demised premises.

17. Furthermore, Learned counsel for the Applicant has also submitted that the Applicant herein has also been subjected to loss of profits and good will attendant to the business, namely, high-end restaurant, which was being operated by the Applicant.

18. Arising from the foregoing submissions, learned counsel for the Applicant has submitted that the Applicant has demonstrated that same [Applicant] shall be disposed to suffer irreparable loss, which is not compensable in monetary terms.

19. Thirdly, learned counsel for the Applicant has submitted that even if the application herein was to be determined on the basis of balance of convenience, same tilts in favour of the Applicant. In particular, it has been contended that the actions complained of are not only illegal and unlawful, but are tantamount to deploying the law of the jungle at the instance of the Respondent.

20. In support of the submissions that the balance of convenience tilts to and in favour of the Applicant, learned counsel for the Applicant has cited and referenced the decision in the case of Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 Others [2016]eKLR.

21. In a nutshell, learned counsel for the Applicant has invited the court to find and hold that the application beforehand is meritorious and thus same ought to be allowed.

b. Respondent’s Submissions: 22. The Respondent filed written submissions dated the 26th December 2024; and wherein same has reiterated the contents of the Replying affidavit sworn on the 31st October 2024. In addition, the Respondent has highlighted and canvassed four [4] salient issues for consideration by the court.

23. First and foremost, learned counsel for the Respondent has submitted that same entered into and executed a lease agreement, which spelt out the terms of engagement. In particular, learned counsel for the Respondent has submitted that vide the terms of the agreement, the Applicant was obligated to pay the rents and the service charge for the demised premises.

24. Additionally, learned counsel for the Respondent has submitted that the lease agreement also contained terms relating to issuance of notices in the event of breach of the terms including failure to pay rents in the stipulated manner. To this end, learned counsel for the Respondent has cited and referenced clauses 10. 1, 10. 2, 10. 3 and 18 of the Lease agreement.

25. Further and in addition, learned counsel for the Respondent has submitted that the Applicant herein lapsed into rent arrears and as a result of the rent arrears, the Respondent herein issued various demand notices dated the 10th June 2024; 6th August 2024 and 6th September 2024.

26. Be that as it may, it has been contended that despite issuance and service of the demand notices, the Applicant herein failed to remedy the breaches complained of and as a result, the Respondent invoked clause 10. 5 of the lease agreement. In particular, it has been contended that the Respondent exercised its right of re-entry and forfeiture.

27. Other than the foregoing, learned counsel for the Respondent has also submitted that the notices which were issued and served upon the Applicant herein complied with the provisions of Section 75 of the Land Act 2012.

28. Premised on the foregoing arguments, learned counsel for the Respondent has contended that the Applicant herein has not established a prima facie case. In any event, it has been contended that the actions by and on behalf of the Applicant constitute breach of contract and hence the Applicant is not deserving of an equitable orders of temporary injunction.

29. Secondly, learned counsel of the Respondent has submitted that the Applicant herein has also not demonstrated that the loss, if any, that same [Applicant] is likely to suffer its irreparable in nature. In this regard, it has been contended that the loss that the Applicant may suffer is quantifiable and compensable in monetary terms.

30. According to learned counsel for the Respondent, it was incumbent upon the Applicant to demonstrate that same [Applicant] shall suffer irreparable loss. However, it has been posited that in the absence of irreparable loss, the orders of temporary injunction cannot issue and/or be granted.

31. Thirdly, learned counsel for the Respondent has submitted that the reliefs that are sought by the Applicant are final in nature. In this respect, it has been submitted that the orders sought by the Applicant, if granted, shall culminate into final orders being issued at an interlocutory stage. To this end, learned counsel for the Respondent has implored the court to decline the request by the Applicant.

32. Finally, learned counsel for the Respondent has also submitted that the Applicant has sought for the orders of mandatory injunction. Nevertheless, it has been contended that despite seeking the orders of mandatory injunction, the Applicant has not established the existence of any special circumstances, to warrant the grant of orders of mandatory injunction.

33. According to Learned counsel for the Respondent an order of mandatory injunction can only be granted where special circumstances have been pleaded and proved. In any event, it has been pleaded that an order of mandatory injunction can only issue with necessary caution and circumspection.

34. In support of the submissions touching on and concerning the circumstances where a mandatory injunction may issue, Learned counsel has cited and referenced the case of Nation Media Group Ltd v John Harun Mwau [2014]eKLR and Mburu v Kibara & 2 Others [Environment and Land Case] KEELC 3226, respectively.

35. In view of the foregoing, learned counsel for the Respondent has submitted that the application by the Applicant is premature, misconceived and legally untenable. In any event, it has been contended that the Applicant is seeking to use the court to re-write the terms of the lease agreement that was entered into and executed by the parties.

Issues for Determination: 36. Having reviewed the application; the response thereto and the written submissions filed on behalf of the respective parties, the following issues do crystalize and are thus worthy of determination;i.Whether the Applicant has proved the existence of a prima facie case with probability of success or otherwise.ii.Whether the Applicant herein shall disposed to suffer irreparable loss; if the orders sought are not granted or otherwise.iii.Whether the Applicant has established and demonstrated exceptional/ peculiar circumstances to warrant the grant of an order of mandatory injunction

Analysis and Determination Issue Number 1 Whether the Applicant has proved the existence of a prima facie case with probability of success or otherwise. 37. It is common ground that the Applicant and the Respondent executed heads of terms relating to the demised premises situate on L.R No. 1159/456 [hereinafter referred to as the suit property]. Furthermore, it is also conceivable that the Applicant and the Respondent subsequently executed a lease agreement dated the 21st March 2024.

38. Additionally, there is no gainsaying that the Applicant herein failed to comply with and/or abide by the terms of the lease agreement. In particular, the Applicant herein failed and/or neglected to pay the contractual rents in accordance with the lease agreement. [See grounds 3 and 4 in the body of the Applicant’s written submissions dated the 12th November 2024].

39. Arising from the non-payment of the rents, it is contended that the Respondent herein proceeded to and served the Applicant with demand notices. To this end, both the Applicant and the Respondent have referenced demand notices dated the 10th June 2024; 6th August 2024 and 6th September 2024, respectively.

40. Nevertheless, the Applicant contends that even though the Respondent generated and issued the impugned demand notices, same [demand notices] did not comply with the provisions of Section 75 of the Land Act 2012. To this end, it has been contended that the Respondent was therefore not at liberty to exercise its rights of entry onto the demised premises or at all.

41. Additionally, the Applicant has contended that the exercise of the right of re-entry and forfeiture by the Respondent was also in breach of clause 10. 1, 10. 2 and 10. 3 of the lease agreement.

42. Other than the foregoing, the Applicant has contended that the Respondent has also illegally detained and/or barred the Applicant from removing various fixtures, fittings and/or equipment’s from the demised premises. In this regard, it has been contended that the impugned actions violate and/or contravene the provisions of clause 18 of the lease agreement which was entered into by the parties.

43. Furthermore, the Applicant has also contended that the act of barring and/or prohibiting the Applicant from taking possession of the equipment’s and removing the fitting and fixtures from the demised premises, constitutes illegal distress onto the equipment’s and fittings. For good measure, the Applicant has contended that the actions complained of constitute a violation of Section 16 of the Distress for Rent Act.

44. In response to the contentions by and on behalf of the Applicant, the Respondent herein has posited that the actions complained of were taken in accordance with the provisions/clauses of the lease agreement. In particular, it has been contended that the Applicant was duly issued with and served with the requisite demand notices in compliance with clauses 10. 1, 10. 2 and 10. 3 of the lease agreement.

45. Moreover, the Respondent has also averred that same [Respondent] lawfully proceeded to and exercised its right of re-entry and forfeiture. To this end, the Respondent has referenced the provisions of clause 10. 5.

46. From the rival averments, and submissions on record, it is apparent that there are various issues worthy of investigations by the court during a plenary hearing. The existence of the various issues [both of fact and law] demonstrate the existence of a prima facie case with a probability of success. In any event, it is important to underscore that an issue worthy of investigation[s] must not necessarily be one that will ultimately succeed.

47. Arising from the foregoing position, it is my finding and holding that the factual matrix and the legal propositions that have been adverted to by the Applicant truly demonstrate a genuine and arguable case. Instructively, the existence of a genuine and arguable case constitutes a prima facie case.

48. The import and tenor of what amounts to and constitute[s] a prima facie case was defined/elaborated upon in the case of Mrao Limited v First American Bank of Kenya [2003] eKLR where the court stated and held thus:4. A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.41. The meaning and import of a prima facie case was re-visited in the case of Jan Bonde Nielsen v Nguruman Limited & 2 others [2016] eKLR where the Court of Appeal stated as hereunder:(24)Starting with what amounts to a prima facie case, the learned Judges expressly accepted the definition given in Mrao Ltd. –v- First American Bank of Kenya Ltd. & 2 Others, (supra). In that case, a prima facie case was defined as follows:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case”.On this definition, the learned Judges expressly stated: -“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be urgent necessity to prevent the irreparable damages that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it, the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or as otherwise put, on a preponderance of probabilities”.

49. In a nutshell, my answer to issue number one [1] is to the effect that the Applicant has established and demonstrated the existence of a prima facie case in the manner known to law.

Issue Number 2 iv. Whether the Applicant herein shall disposed to suffer irreparable loss if the orders sought are not granted or otherwise. 50. Suffice it to underscore that proof/demonstration of the existence of a prima facie case with probability of success, does not automatically leap-frog the Applicant to an order of temporary injunction. Nevertheless, it is instructive to underscore that proof of a prima facie case constitutes the prelude or percussor to partake of an order of temporary injunction.

51. Put differently, where an Applicant surmounts the hurdle of establishing a prima facie case, then such an applicant has the liberty to venture forward and prove irreparable loss, harm and/ or injury. However, where an Applicant fails to surmount the hurdle of prima facie case, then the pursuit of an order of temporary injunction by such an Applicant terminates and/or lapses without more.

52. What I am saying is to the effect that once an Applicant proves the existence of a prima facie case; then such an Applicant must thereafter venture forward and address the critical question of irreparable loss. Instructively, irreparable loss is the key pillar or cornerstone that underpins the grant of an order of temporary injunction.

53. To this end, it is apposite to cite and reference the decision in the case of Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86, where the Court of Appeal stated and held as hereunder:If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, 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.

54. The primacy/centrality of irreparable loss in an application for temporary injunction was re-affirmed in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.42. For coherence, the Court stated thus:In conclusion, we stress that it must always be borne in mind that the very foundation of the jurisdiction to issue orders of injunction vests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of the multiplicity of suits and where facts are not shown to bring the case within these conditions the relief of injunction is not available.

55. Having taken into consideration, the ratio decidendi in the decision [supra], it is now apposite to revert to the matter beforehand and to discern whether the Applicant herein shall be bound or disposed to suffer irreparable loss.

56. To start with, the Applicant complains that the Respondent has illegally exercised its right of re-entry and forfeiture. In this regard, it has been contended that the Respondent has therefore retaken possession of the demised premises.

57. Additionally, it has been contended that as a result of the impugned actions by the Respondent, the Applicant has been denied and deprived of the liberty to access the demised premises and even to remove the equipment[s], fittings and fixtures from the demised premises.

58. According to the Applicant, the actions by the Respondent herein have interfered with her Applicant’s right to run [sic] the high-end restaurant and to make profits from the business.

59. Despite the contention by the Applicant, that same [Applicant] shall suffer irreparable loss, I am at pains to discern or decipher the foundation of the claim that the Applicant shall be disposed to suffer irreparable loss.

60. To start with, the equipment’s, fittings and fixtures,[if any], that are within the demised premises are capable of valuation. In addition, and subject to valuation, the equipment’s/items complained of can thereafter be compensated in monetary terms.

61. Secondly, the Applicant complain[s] about loss of business and attendant goodwill. There is no gainsaying that loss of business and goodwill, are capable of being quantified in monetary terms. Suffices it to posit, that if duly quantified and pleaded, same are equally payable in monetary terms.

62. Further and at any rate, it is not lost on this court that the Applicant herein has indeed proceeded to and quantified [sic] the nature of loss that same is said to have suffered. For good measure, the Plaint dated the 11th October 2024 highlights and enumerates the monetary claims arising from [sic] the actions complained of. Without belabouring the point, it is apparent that the loss and/or injury, if any; that the Applicant shall be disposed to suffer are indeed quantifiable.

63. Other than the foregoing, it is also worthy to outline that the Respondent herein shall be in a position to pay whatever damages subject to proof. For good measure, I did not hear the Applicant to impugn the financial capability of the Respondent to meet damages/compensation, if any; that may be due and awardable.

64. On the contrary, it is conceded by the Applicant that the Respondent herein is indeed the registered owner of the suit property on which the demised premises is situate. In any event, taking into account the nature of rental income that was derivable from the Applicant, there is no gainsaying that the Respondent herein has a solid asset/ Financial base.

65. Before departing from this issue, it is imperative to discern what constitute[s] irreparable loss. To this end, it suffices to reiterate the definition that was supplied in the case of Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR, where the Court of Appeal elaborated on the meaning and import of what constitutes irreparable loss.43. Instructively, the Court stated as hereunder:“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

66. From the foregoing analysis, I am afraid that the Applicant herein has failed to establish and/or substantiate the likelihood of substantial loss/ harm arising. If anything, the loss that is apprehended by the Applicant has already accrued and thus can only be remedied by [sic] payment of damages.

Issue Number 3 Whether the Applicant has established and demonstrated exceptional/ peculiar circumstances to warrant the grant of an order of mandatory injunction 67. The Applicant herein had also sought for an order of mandatory injunction to enable same to revert to the demised premises for purposes of removing all her improvements, fixtures and fitting.

68. However, in the body of the application and the submissions filed by the Applicant, same [Applicant] has contended that the Respondent herein appears to have exercised the right of lien over items in question. Furthermore, it has also been contended that the actions by the Respondent constitutes and/or amounts to illegal distress contrary to Section 16 of the Distress For Rent Act.

69. Notwithstanding the foregoing, the Applicant herein conceded that same had accrued and accumulated rent arrears. For good measure, it was acknowledged that rent arrears stood at Kes.7, 446, 251. 26/= only as at 31st July 2024. To my mind, the Respondent may [I say, may] very well have a claim on account of lien.

70. Nevertheless, whether the actions by the Respondent either on the basis of right of lien or distress is lawful, shall be addressed during the plenary hearing. For now, the court is not called upon to make any precipitate findings on questions of facts and law.

71. Other than the foregoing, it is also important to cite and reference the provisions of clause 10. 4, 10. 5 and 18 of the lease agreement. Prima facie, the clauses under reference seems to suggest that the Respondent may [I say may] have a right to any goods and/or equipment in the demised premises in the event of failure to pay rents.

72. I have highlighted the foregoing perspectives, to demonstrate that an order of mandatory injunction is not merited. In any event, there is no gainsaying that the Applicant has neither established nor demonstrated any exceptional circumstances to warrant the grant of an order of mandatory injunction.

73. Moreover, it is not lost on this court that an order of mandatory injunction is an equitable remedy. To this end, the court is called upon to evaluate the conduct of the parties. Instructively, the Applicant herein is keen to partake of equity, yet same [Applicant] does not appear to have approached equity with clean hands.

74. All in all, I am not persuaded that the Applicant has met or satisfied the requisite threshold to warrant the grant of an order of mandatory injunction. Suffice it to posit that such an order can only issue in exceptional and special circumstances and not otherwise.

75. To vindicate the foregoing exposition of the law, it is apposite to cite and reference the decision in the case of Nation Media Group, Wilfred Kiboro & Wangethi Mwangi v John Harun Mwau (Civil Appeal 298 of 2005) [2014] KECA 308 (KLR) (Civ) (17 October 2014) (Judgment).

76. For good measure, the court stated thus;It is trite law that for an interlocutory mandatory injunction to issue an applicant must demonstrate existence of and special circumstances. See Kenya Breweries Limited vs. Washington Okeyo, Civil Application No. 332 of 2000. Likewise, in volume 24 Halsbury’s Laws of England, 4th Edition paragraph 948, the learned authors state as follows:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…. a mandatory injunction will be granted on an interlocutory application.”

77. Furthermore, the court of appeal ventured forward and stated as hereunder;We agree with Mr. Mogere that in an application for a mandatory injunction the balance of convenience is not the only principle which an applicant has to satisfy as stated by the learned Judge at page 34 of the ruling. A different and higher standard than that in prohibitory injunctions is required before an interlocutory mandatory injunction is granted. Besides, existence of exceptional and special circumstances must be demonstrated as we have stated, a temporary mandatory injunction can only be granted in exceptional and in the clearest of cases. See Kenya Airports Authority Vs. Paul Njogu Mungai & Others Civil Application No. 29 of 1997 (CA). As the court stated in the case of Locabail International Finance Ltd. Vs. Agroexpert & Others [1986] 1 ALL ER 901, the court has to have “a high degree of assurance that at the trial it would appear that the injunction had rightly been granted…..”.

Final Disposition: 78. For the reasons and analysis, which have been outlined in the body of the ruling, I come to the conclusion that the application dated the 11th October 2024; is not only misconceived, but legally untenable.

79. In the circumstances, the final orders that commend themselves to the court are as hereunder;i.The Application dated the 11th October 2024 be and is hereby dismissed.ii.Costs of the Application be and are hereby awarded to the Defendant/Respondentiii.The Interim orders hitherto granted/issued, be and are hereby discharged.

80. It is so ordered

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JANUARY 2025OGUTTU MBOYA,JUDGE.In the presence of:Benson – court Assistant.Mr. Andrew Wandabwa for the Plaintiff/Applicant.Mr. James Warioto for Defendant/Respondent.