|Civil Case 472 of 2010
|DR. MOHAMED IRSHAD HASSAN T/A AL SHIFAA MEDICAL SERVICES vNASSIR ARTE & AMINA NASSIR ARTE
|25 Mar 2011
|High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
|Murugi Geteria Mugo
|DR. MOHAMED IRSHAD HASSAN T/A AL SHIFAA MEDICAL SERVICES vNASSIR ARTE & Another [ 2011] eKLR
|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
IN THE HIGH COURT OF KENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 472 OF 2010
The Applicant in the Chamber Summons dated 7th July 2010 was a protected tenant of the Respondent’ in the latter’s business premises at Plot No.637 Biashara Street, Garissa which he vacated during the month of May 2010. He has filed this application alongside a Plaint dated 7th July 2010, which was filed in this court for the purposes of obtaining injunctive orders against the Respondents, subsequent to the filing of a reference with the Business Premises Rent Tribunal, Embu on 24th May 2010. In the Plaint the Plaintiff/Applicant seeks the following orders:-
(a) Special damages as particularized in paragraph 9 (a-d).
(c) General damages
(d) Costs of the suit.
The orders sought under the Chamber Summons are, inter alia, as follows:-
1. That this honourable court be pleased to grant a temporary injunction compelling the Respondent to return and/or restore the Plaintiff’s goods, equipments and documents seized on 29th May 2010 pending the hearing and determination of this application.
2. That the honourable court be pleased to grant an injunction compelling the Respondent to return the Plaintiff’s goods, equipment and documents seized on 29th May 2010 pending the hearing and determination of the main suit.
Prayer 1 above was granted at the exparte stage and expressed to be for fourteen (14) days. Although extracted on 13th July 2010, the same has not been referred to in the written submissions filed in support of the application. The application is premised mainly on the grounds that on or about 28th May 2010 the Defendant/Respondent evicted the Applicant and removed the Applicant’s goods, equipments, drugs, official records and documents and carried them to unknown place and that no inventory was taken in respect of the said goods. In paragraph 12 of the affidavit filed in support of the application, the Applicant has deponed that he reported the occurrence at the Garissa Police Station 26th June 2010. He however has not annexed any document to prove that, although he says the report was noted in the Occurrence Book OB;43/26/6/10. He contends that the eviction was illegal and unlawful but I do not consider this to be a relevant issue in this proceedings as it is a matter for determination by the Business Premises Rent Tribunal where a reference is pending.
The application is opposed on the strength of a replying affidavit sworn by the 1st Respondent on 20th September 2010, in response to which the Applicant filed what he calls a Further Affidavit of 8th October 2010. In paragraph 7 of the replying affidavit, the 1st Respondent has deponed that the Applicant vacated/yielded the premises voluntarily and carried his goods from the premises as evidenced by an inventory of the same date annexed as Exhibit NA-4. This followed a notice issued in January 2010 (annexture NA-2) which was extended by a further two (2) months, following negotiations held between the Applicant and the Respondents conducted with the assistance of two mutual friends as stated in paragraph 6 of the replying affidavit. An affidavit sworn by the said friends by the names Doctor Mohammed Subow and Doctor Hassan Dahiye is annexed as NA-3. The two have sworn that the Applicant yielded the Respondents business premises voluntarily, subsequent upon their own request that the Respondents grant the Applicant time to find alternative premises. The giving up of the premises, is said in paragraph 6 of NA-3, to have been subject to the Applicant paying outstanding rents, bills and repair costs to the Respondent.
The above facts have not been rebutted in any way, since no affidavit was filed in response thereto. Although parties agreed to file written submissions in the application, only counsel for the Applicant did so on 28th October 2010. The submissions mainly address to the Applicant’s claim that he was illegally evicted from the premises, which I have already stated is not for this court to determine. The matters raised in the said submissions do not demonstrate that the Applicant has a prima facie case with a probability of success against the Respondents. Neither do they show that he would suffer irreparable loss not compensable by an award of damages as would entitle him to an order for injunction.
In view of he above, I find that the Applicant has not made out a case for the mandatory injunction sought and the application is hereby dismissed with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 25th Day of MARCH 2011.