Margaret Wanjiru t/a Peggy Phones v Peter Kamau t/a Kandara General Stores & 2 others [2015] eKLR

Key Facts

Issues

• The second issue centered on the legality of the defendants' termination notice. The plaintiff argued that the notice was suspended due to the pending BPRT reference (No 184/2014), while the defendants claimed the tenancy was terminated for their own use and management by a third party. The court assessed compliance with Cap 301's provisions governing controlled tenancy terminations.
• The court evaluated the plaintiff's claim for a mandatory injunction, requiring a clear and strong case. The applicant argued the defendants' actions (reinstating a third party and failing to justify termination) amounted to unlawful dispossession, while the defendants contended the application was moot due to alleged events. The ruling emphasized the constitutional right to access justice and due process.
• The court considered if monetary compensation could adequately redress the plaintiff's claims. It rejected this, noting that allowing financially strong parties to disregard legal rights through potential damages payments would undermine constitutional principles of non-discrimination and rule of law under Article 50 of the Kenyan Constitution.
• The court determined if the plaintiff, as a tenant, is entitled to temporary and mandatory injunctions against the defendants' attempts to terminate her tenancy under Cap 301 of the Business Premises Rent Restriction Act. Key legal questions included the validity of the termination notice, the effect of the pending BPRT reference, and whether the defendants' actions constituted unlawful dispossession.

Holdings

• The court granted the plaintiff a mandatory injunction to be reinstated into the premises, finding that the defendants' attempt to terminate the tenancy was unlawful and pending tribunal determination. The ruling emphasized that the plaintiff's rights as a tenant under Cap 301 and the Constitution must be protected, and the defendants failed to justify their actions as lawful.
• The court awarded the plaintiff the costs of the application to be paid by the defendants, as the defendants did not file written submissions or appear for the hearing despite the court's orders.

Remedies

• The court granted a mandatory injunction ordering the plaintiff to be reinstated to the premises unconditionally, ensuring her peaceful occupation pending the suit's determination.
• A temporary injunction was issued to restrain the defendants from leasing the suit premises to any third party until the court's determination of the case.
• The plaintiff was awarded the costs of the application, which must be paid by the defendants.

Legal Principles

• The court applied the principle of interim injunction, granting both mandatory and restrictive orders to protect the plaintiff's rights under a controlled tenancy. The ruling emphasized that termination of a controlled tenancy must follow legal procedures under Cap 301, and any attempt to terminate without due process is unlawful. The mandatory injunction required the plaintiff's reinstatement to the premises, while the restrictive injunction prohibited the defendants from leasing the property to third parties pending the case's determination.
• The court underscored the constitutional mandate for equal protection under the law, rejecting the defendants' actions as unlawful and discriminatory. It held that allowing financially powerful parties to disregard legal rights through monetary power would undermine societal order and the rule of law. The decision emphasized that courts must intervene to prevent such abuses and ensure due process.

Precedent Name

• VICKY MONGI -vs- EISTHER NGUNA CIANDA
• KAMAU MUCUNA -vs- THE RIPPLES
• HARVEY BAR AND RESTAURANT -VS- FERNANCO
• CHARLES MWANGI -vs- MOHAMED HASSAN SHEIKCH NOOR

Cited Statute

• Kenyan Constitution
• Business Premises Rent Restriction Act

Judge Name

Passage Text

• Section 4(1) of the Cap 301 provides:- 'Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.' and section 6(1) provides:- 'A receiving party who wishes to oppose a tenancy notice... may refer the matter to a Tribunal, whereupon such notice shall be of no effect until... determination of the reference.'
• I have held that the plaintiff's controlled tenancy on the suit premises remain pending the determination by the Tribunal of the Reference duly filed. Having found that the Applicant is such a tenant and that she is entitled to the benefits of the law and demand for due process, I hold that to allow the Respondent to interfere with such rights would be unlawful. To that extend I find and hold that the plaintiff seeking to protect a right as a tenant whose landlord has sought to terminate otherwise than by legal mean has demonstrated a prima facie case.
• It is not difficult to imagine the extent of anarchy and dissent that would then ensue with resultant disruption of smooth operation of orderly and legitimate commerce. Such is the scenarios all civilized societies seek to obviate by surrendering to the dictates of the rule of law and due process. In any event the defendant having failed to justify their actions as lawful, there is no material upon which I can base a finding that damages would be an adequate remedy.