Case ID:173921

Alexandrina Ngugi & 5 others v Board of Trustees Kiambu Institute of Science & Technology [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 67 of 2020

Parties:

Alexandrina Ngugi & 5 others v Board of Trustees Kiambu Institute of Science & Technology

Date Delivered:

22 Apr 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Alexandrina Ngugi & 5 others v Board of Trustees Kiambu Institute of Science & Technology [2021] eKLR

Court Division:

Environment and Land

County:

Kiambu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 67 OF 2020

ALEXANDRINA NGUGI & 5 OTHERS...............................................PLAINTIFF/APPLICANT

VERSUS

BOARD OF TRUSTEES

KIAMBU INSTITUTE OF SCIENCE AND TECHNOLOGY.....DEFENDANT/RESPONDENT

RULING

By a Notice of Motion Application dated

25

th

August 2020,

the Plaintiffs/Applicants has sought for the following orders against the Defendant/Respondent: -

1) THAT the Defendant/Respondent either by itself, servants, agents, representatives and/or assignees be restrained from increasing rent, attaching, auctioning, repossessing, evicting, harassing and/or in any other manner from dealing with the Plaintiffs quiet possession at

L.R NO.81/32

belonging to the Defendant/Respondent pending the hearing and final determination of this Application and suit.

2) THAT the Plaintiffs/Applicants to continue to pay the current rent pending the hearing and determination of this Application and suit.

3) Costs of this Application be provided for.

The Application is supported by the Affidavit of

GEOFFREY KAMAU

who has authority to swear on behalf of the other Applicants. He averred that the Defendant/Respondent has unreasonably increased rent to the suit premises from

Kshs.16,800/=

to

Kshs.37,058/=

via a Notice dated

22

nd

July 2020,

without any justifiable cause and the said housing units are not fit since the same have been valued and/or accessed at the Rent Restriction Tribunal and standard rent has been fixed at

Kshs.9000/=

for three bedroom and

Kshs.6,500/=

for a two bedroom houses via Tribunal Ruling delivered on

21

st

September 2016.

He further averred that at all material times, the Applicants are tenants of

Kiambu Institute of Science and Technology

residential premises as both academic and non-academic staff. He deponed that on

1

st

June 2018,

upon the Defendant’s/Respondent’s request, they agreed that rent payable be adjusted to

Kshs.16,800/=

which they are paying up to date. He further deponed that they seek an injunction to restrain the Defendant/ Respondent either by itself, servants, agents, representatives and/or assignees be restrained from increasing rent, attaching, auctioning, repossessing, evicting, harassing and/or in any other manner from dealing with the Plaintiffs’/Applicants’ quiet possession at

LR NO.81/32,

belonging to the Defendant/Respondent, pending the hearing and final determination of this Application and suit.

The Application is opposed and the Defendant/Respondent filed Replying Affidavit sworn by

JUDY KARIUKI

dated

3

rd

November 2020,

together with written submissions dated

10

th

December 2020,

drawn by the Law Firm of

KINUTHIA WANDAKA & CO ADVOCATES

. The Applicants’ filed a Further Affidavit dated

30

th

September 2020,

with their Written Submissions dated

13

th

November 2020,

drawn by the Law Firm of

ERIC N AMATI &CO ADVOCATES

which the Court has carefully considered and renders itself as follows;

The Court cannot find and hold at this stage of the proceedings whether the rent should be increased or not. The said determination will have to await the calling of evidence, testing of the same in cross examination and evaluation of the tendered evidence.

At this stage, the Court is only mandated to arrive at a finding of whether the Applicants has met the threshold for grant of injunctive orders. The threshold was set out in the case of

Giella…Vs… Cassman Brown & Co. Ltd 1973 EA 358

, where the Court held:-

“The conditions for granting a temporary injunction in East Africa are well known and these are:

First

, the Applicant must show a prima facie case with a probability of success.

Secondly

, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury which might not adequately be compensated by an award of damages.

Thirdl

y, if the Court is in doubt, it will decide an Application on the balance of convenience. See also

E.A Industries ..Vs..Trufoods (1972) EA 420.”

Further in the case of

Edwin Kamau Muriu Vs Barclays Bank of Kenya Ltd Nairobi HCCC No. 1118 of 2002

, the Court held that:-

“In an Interlocutory Application, the Court is not required to determine the very issues which will be canvassed at the trial with finality. All the Court is entitled at that stage is to determine whether the Applicant is entitled to an Injunction sought on the usual criteria.”

Has the Applicant satisfied the above criteria? The Plaintiffs/ Applicants have adduced evidence in this Court in form of rent payment receipts and pay-slips to signify that they are tenants and are employees of

Kiambu Institute of Science and Technology

(Defendant herein). Further they have tabled evidence to show that the Defendant/Respondent has issued a Notice dated

22

nd

July 2020,

for rent increment thus the Court finds that the evidence of threatening to evict the Applicants is prima facie proof that the substratum of the suit properties would be interfered with. Therefore, this Court finds and holds that the Plaintiffs/Applicants have established that they have a prima facie case with probability of success at the trial.

If the Defendant/Respondent is allowed to proceed and issue new rent payments, the Applicants’ may vacate the premises and in the event the Plaintiffs/Applicants are successful litigants at the end of the main trial, then they would have suffered an irreparable loss or damages which might not sufficiently be compensated by an award of damages. See the case of

Olympic Sports House Ltd…Vs…School Equipment Centre Ltd (2012) eKLR

, where the Court held that:-

“a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.”

On the balance of convenience, the Court finds that it tilts in favor of maintaining the

status quo

and the

status quo

herein i.e. the Plaintiffs/Applicants to continue paying rent as they are paying at the moment thus the Notice to increase rent by the Defendants/ Respondent shall not take effect until the suit is heard and determined.

Having carefully considered the instant Notice of Motion Application dated

25

th

August 2020

, the Court finds it

merited

and the same is allowed entirely in terms of prayers

No. 3

and

4

with being in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 22ND DAY OF APRIL 2021.

L. GACHERU

JUDGE

22/4/2021

Court Assistant - Phyllis

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Amati for the Plaintiffs/Applicants

M/s Kamau for the Defendant/Respondent

L. GACHERU

JUDGE

22/4/2021