Sheila Wambui v Eliud Mbugua Ndungu [2021] KEBPRT 125 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E113 OF 2021 (NAIROBI)

SHEILA WAMBUI............................................APPLICANT/TENANT

VERSUS

ELIUD MBUGUA NDUNGU................RESPONDENT/LANDLORD

RULING

1. On 17th May 2021, the application dated 29th April 2021 was allowed ex-parte in terms of prayers 3,4 and 7 thereof leaving payers 2,5,6,8 and 9 undermined.

2. I note that most of the remaining prayers are in the nature of mandatory injunction and if decided on the affidavit evidence on record will end up embarrassing the full trial.

3. Indeed, the complaint herein which was curiously instituted by way of a plaint raises the same issues that are the subject matter of the undermined prayers in the said application.

4. In the case of Kenya Breweries Limited & Another – vs- Washington O.Okeyo (2002) eKLR, the Court of Appeal cited with approval Vol. 24 Halsbury’s Laws of England, 4th Edition para 948 on the test applied before granting a mandatory injunction 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 a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover before granting a mandatory interlocutory injunction, the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”

(see also the case of Locabail international Finance ltd –vs- Agroexport and others (1986) 1 ALL ER 901 at page 901).

5. The cause of damage occasioned to the demised premises is in dispute and without a full trial, it is impossible for this Tribunal to know how it occurred. It is not an issue that can be determined in a summary manner.

6. In the premises, I direct as follows:-

(a) The issues raised in the application dated 29/4/2021 shall be addressed at the full hearing.

(b) The parties are directed to file and exchange witnesses statements and duly paginated list of documents for use at the hearing within 30 days.

(c) The costs of the application shall abide the outcome of the main reference.

(d) Hearing of the main Reference shall be fixed on a priority basis.

RULING DATED, SIGNED AND DELIVERED THIS 5TH DAY OF NOVEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Wamuyu for the Landlord

No appearance for the Tenant

Further order:

Mention on 3/12/2021

Order to be served upon the Tenant.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

5/11/2021