Simon Kamande Nedgwa v Rebecca Osimbo Seruya [2021] KEBPRT 319 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 103 OF 2021 ( NAIROBI)

SIMON KAMANDE NEDGWA..................................................TENANT

VERSUS

REBECCA OSIMBO SERUYA......................RESPONDENT/TENANT

RULING.

1. The tenant filed the present reference on 28th January, 2021 seeking the Tribunal’s intervention to stop the Landlord from evicting him. Contemporaneously with the reference, the tenant filed an application brought under certificate of urgency seeking temporary orders of injunction. The application was allowed in terms of   prayer 2 on 2nd February 2021 pending inter partes hearing.

2. The Landlord upon being served with the application and the order dated 2/2/2021 responded by filing an application brought by way of certificate of urgency. The gist of the later application is that the Landlord was aggrieved by the ex parte orders issued against her and prayed that the Tribunal do vary, vacate or set aside the same. I will first  delve into the merits of the prayers sought in the Landlord’s application.

3. The grant of temporary orders of injunction is governed by the provisions of Order 40 of the Civil Procedure Rules. The Tribunal can vary any interim orders issued as espoused under Order 40 Rule 7 of Civil Procedure Rules which provides as follows: -

“ Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”

4. The Tribunal in determining whether to set aside or vary interim orders is guided by the decision in the case of Ragui – Vs – Barclays Bank of Kenya Ltd(2002) I KLR 647whereHon. Justice Ringera as he was, held:-

“It is settled law that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same will on the application of the party aggrieved be discharged.

The injunction was granted because of non-service of the statutory notice of the exercise of the power of sale on the administrators of the estate, which was the true position hence it would not be unjust or inequitable to maintain the interlocutory injunction issued in force.”

5. Further in the case of Mobile Kitale service Station V Mobil Oil Kenya Limited & Another(2004) 1 KLR the court pronounced itself on the issue as follows:

“An interlocutory injunction is given on the court’s understanding that the defendant is trampling on the rights of the plaintiff.

An interlocutory injunction, being an equitable remedy, would be taken away(discharged) where is shown that he person’s conduct with respect to matters pertinent to the suit does not meet the approval of the Court which granted the orders which is the subject matter.

The orders of injunction cannot be used to intimidate and oppress another party. It is a weapon only mean for a specific purpose-to shield the party against violation of his rights or threatened violation of the legal rights of the person seeking it.”

6. The Landlord in her application wants the interlocutory injunction issued to the tenant set aside, or discharged or varied due an alleged misrepresentation of material facts by dint of the allegations that the tenancy relationship between the parties herein ceased to exist. The injunction order issued on 2nd February, 2021 were issued on the Tribunal’s understanding that the tenant’s rights were being violated by the Landlord who was threatening to carry out eviction.  The facts presented by the parties on the issue of the existence of the tenancy is contested. It is one that I cannot determine at an interlocutory stage.

7. In the circumstances of the instance case I find that it would be wrong and unjust to penalize the tenant by setting aside, vacating or varying the orders of 2nd February, 2021 as by doing so would amount to exposing the party to violation of his rights or expose him to threat of violation of the legal rights he is seeking pending hearing and determination of this reference.

8. It should also be imperative to note that the Landlord’s application if allowed can determine the reference with finality at an interlocutory stage. The eviction of the tenant, will render the present reference nugatory. I am fortified by the the Court of Appeal decisions in the case OLIVE MWIHAKI MUGENDA & ANOTHER V OKIYA OMTATA OKOITI & 4 OTHERS [2016] eKLRwhere the courtconsidered a persuasive decision of India on issuance of final orders at interlocutory stage and stated:

“Ashok Kumar Bajpai V Dr. (Smt) Ranjama Baipai, AIR 2004, All 107, 2004 (1) AWC 88, at paragraph 17 of the decision the Indian Court expressed as follows:

“… It is evident that the Court should not grant interim relief which amounts to final relief and in exceptional circumstances where the Court is satisfied that ultimately the petitioner is bound to succeed and fact-situation warrants granting such a relief, the Court may grant the relief but it must record reasons for passing such an order to make it clear as what are the special circumstances for which such a relief is being granted to a party”.

9. I stated earlier that the Landlord’s application was filed in response to the tenant’s application. The modes of responding to an application are stated explicitly under Order 51 Rule 14 of the Civil Procedure Rules. The rules do not envisage a situation whereby a party files a separate application as a response. The issues raised in the application could be ventilated through a replying affidavit. The application was filed prematurely.

10. Having made the above determination, I will now turn to the application for temporary orders of injunction. The requirements for the grant of  temporary injunctions are now well settled as were stated in the celebrated case of GIELLA VERSUS CASSMAN BROWN  (1973) EA 358 and as were reiterated in the case of  Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014)eKLR where the Court of Appeal held  that;

“in an interlocutory injunction application the applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.

These are the three pillars on which rests the foundation of any order of injunction interlocutory or permanent.  it is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”

11. The tenant has alluded to being in possession of the demised premises. The evidence tendered by the Landlord confirm the same. The Landlord has even engaged the city inspectorate seeking to have him evicted. The Landlord does not deny ownership of the demised premises.  The tenant has established a prima facie case.

12. Onto the second limb, the tenant has stated that he has been in possession of the demised premises for a long period. He has established a customer base and network over the period. I have not been pointed to any breach that he has committed against his agreement with the Landlord.

13. The upshot of this is that the tenant’s application dated 28th January, 2021 has merit.

DISPOSITION:

1. The tenant’s application dated 28th January, 2021 is allowed  in terms of prayer 4 with no orders as to costs.

2. The Landlord’s application dated 8th February, 2021 is dismissed with no orders as to costs.

3. The parties to take the necessary steps to fix the reference for hearing without any undue delay.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 8TH DAY OF SEPTEMBER  2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the absence of the parties.