Villa Care Management Ltd v Villa Care Management Ltd [2014] KECA 346 (KLR)

INTHE COURT  OF APPEAL IN NAIROBI

CORAM: MURGOR J.A. (IN CHAMBERS) CIVIL APPLICATION NAI. NO. 224 OF 2014

BETWEEN

VILLACARE MANAGEMENT LTD…………...............APPLICANT AND

GEORGE  NDUATI MUNENE…….……..................RESPONDENT

(Being an application for an injunction pending  the hearing  and determination  of  the   intended  appeal   from   the   Ruling   and Order of Onyancha  J delivered on 26th  May 2014

in

H.C.C. APPL No 29 of 2013)

************

R U L I N G

On the  28th  August 2014, I declined to  certify this  matter as urgent   having  decided  that   no   urgent   circumstances  were apparent to warrant the issuance of a certificate of urgency.

Briefly the  facts of the case are that Easthaven Development

Company Limited developed twenty seven  (27)  houses  on LR No.

4857/121   Nairobi.  Six   (6)   of  the  houses    were    sold   to   the respondent, six (6) to Mentor Group  Ltd,  and  fifteen (15)  separate to  individuals.  Brooklyn Springs Management  Ltd,  owned by  all

the  house  owners was  to  manage all  the  houses  and  to provide water, electricity, and  undertake cleaning services amongst other services. Mentor Group  Limited, one of the owners, went ahead  to appoint Villa  Care  Management  Ltd,  the  applicant, to  manage all the  twenty seven   houses.   The  respondent has  objected to the provision  of  the   management  services  by   the   applicant  for reasons that  the  applicant has  persisted in  charging exorbitant management and service charge fees, including over  charging the house   owners for  water  and  electricity.  As  a  consequence,  he sought court intervention to restrain the applicant from continuing to provide these services.

The applicant, on the  other hand  contends that their services were  initially provided with the  consent of the  respondent, and  in any  event, the  majority of the  house  owners did  not have  any objection to the applicant providing the  services.

In a Notice of Motion dated 8th  February 2012  the  respondent sought injunctive orders restraining the  applicant and  its servants or agents from managing or providing services to, and in any  way interfering with the  applicant’s six houses  out of the  twenty seven

houses   on  LR  No.  4857/121  Nairobi, pending  the   hearing  and determination of the suit.

In a Ruling  delivered on 26th May 2014  Onyancha J,  found that the  respondent had established a prima facie case to prevent the  applicant from continued provision of the  services, and in so doing, granted the injunction sought in relation to the respondent’s six houses.

Being  dissatisfied with the  decision of the  High Court the applicant filed a Notice of Appeal to this Court on 10th June 2014, and on 27th  August 2014   filed a Notice of Motion together with an supporting affidavit sworn  by DanielOjijo,   seeking an  injunction to restrain the  respondent , their servants and agent or otherwise from executing the  Order  of the  High Court of 26th May 2014 pending the  hearing and determination of this application, against the  Ruling  and Order.

Attached to the Notice of Motion was a Certificate of Urgency dated 27th  August 2014  supported by the sworn  affidavit of NdoloFelix  Onyango. This was the  application that I declined to certify as urgent. In the urgency certificate the  applicant contended that

in  granting the  injunction in  respect of the  six  houses,  the High Court  did   not  take   into   account  the   payment  for  services in respect of the common areas  of the property, where the  applicant is mandated to provide the  services, and for which the  respondent has refused to make  payment, thus  occasioning loss and  harm to the  applicant.

The  application was  referred back  to  me  under rule  55of this  Court’s rules  for hearing inter partes. Learned counsel for the applicant,  Mr.N.   F.  Onyangosubmitted  that  following  the issuance of the  injunction the respondent had  interpreted this  to mean  that he  was  not liable for payment of any  of the  service charges, including the  services for the  common areas,  which had resulted in the  unpaid sum  of Kshs. 1,000,000. Counsel  submitted that  this  amount was   to  facilitate  the   continued  provision  of services to all  the  housing units, and  unless  paid,  the  quality of services to the  other home  owners would be compromised. When pressed by  the  court for the reason or  reasons for urgency, Mr. Onyango  responded  that  the  continued  non-payment  of  the service charges by  the respondent was  affecting the  applicant’s ability to perform the services.

Mr. Makumi, learned counsel for the  respondent, in  his rejoinder  contended that  according to  the  Joint  Venture agreement  between the  parties,  Brooklyn Springs Management Ltd   was   to   provide  the  management  services,  and   not  the applicant. In his view, the  applicant had not specified any  reasons for having the application certified as urgent.

Having considered the  pleadings and  heard the  rival submissions of counsel, I  remain unable to  see  any  reason to certify the  Notice of Motion as urgent. The  applicant states that the   application must be  heard urgently because it  is  incurring losses  for services that it is providing to  the respondent, and  for which the respondent has  refused to  pay.  The  applicant has  not shown  how  the non-payment has  affected its  ability to carry out the  services, or  that the non-payment has  in  effect brought its business  to  a  standstill  or,  has  given  rise   to  a  precarious  or prejudicial  state  of  affairs  within  the   company.  In  the circumstances, I decline to alter my  decision made  on 29th August

2014. The costs  of this  application for urgency to be in the  main application.

Datedand  delivered at Nairobi this  3rdday  of OCTOBER,

2014.

A.K. MURGOR

JUDGEOF APPEAL

I certify that this is a true copy  of the  original.

DEPUTY REGISTRAR