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ELCAllowedAppeal against Ruling in Nairobi CM's MCCOMMSU/E1291/2021

Gakui v Golden Gate Cargo Company Limited (Environment and Land Appeal E027 of 2023) [2025] KEELC 4158 (KLR)

High Court of Kenya (first appellate court over the trial magistrate's court)
27 May 2025
3,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court overturned an injunction because the tenant couldn't prove a valid, registered lease — unregistered lease agreements won't protect you against third parties.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Thika (Mogeni J) against a Ruling of the trial Magistrate's Court (Hon Becky Cheloti Mulemia) delivered on 23rd June 2023 in Nairobi MCCOMMSU/E1291/2021, in which Golden Gate Cargo Company Limited (plaintiff at trial) obtained temporary injunction orders restraining Phoebe Wangui Gakui (defendant at trial) from interfering with its quiet possession of leased premises on LR Number 36/VIII/548, Eastleigh, from levying distress for rent, and directing that status quo be maintained. The lease dispute concerned a Lease Agreement dated 21/2/2018 through agent Farah Ahmed Omar, with the respondent later citing a lease dated 21/2/2021; the appellant contended no valid lease existed between the parties. Leave to file the appeal out of time was granted on 9/5/2024. Framing two issues (merit and costs), the Court applied the first appellate duty under Section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co, and the Giella and Nguruman injunction tests. It found that the respondent's supporting affidavit cited inconsistent lease dates (21/1/2018 and 21/2/2021) and that no evidence of registration of either lease was adduced. Relying on Munyu Maina v Hiram Gathiha Maina and Mega Garment Limited (restating Bachelors Bakery on unregistered leases), the Court held the trial court erred in failing to analyse the critical issue of the existence of a valid lease bearing on the prima facie case, justifying interference with its discretion under Celestine Ann King. The appeal was allowed with costs to the appellant, the impugned Ruling set aside, and the suit remitted for hearing before another court. Neither party attended the virtual delivery.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appeal is merited?
  2. 2.Who bears costs?

Key legal issues

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01

Whether the trial court properly exercised its discretion in granting a temporary injunction without determining the existence of a valid lease

Holding

The appeal was allowed; the trial court failed to analyse the critical issue of the existence of a valid Lease Agreement, which bore on the establishment of a prima facie case.

Reasoning

A first appellate court must re-evaluate the whole evidence and draw its own conclusions under Section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co. The respondent claimed to be a registered lessee but produced inconsistent lease dates (21/2/2018 and 21/2/2021) and no evidence of registration. Following Munyu Maina and Mega Garment/Bachelors Bakery, an unregistered lease gives no protection against third parties, and attaching a lease document alone does not prove possession. The trial court's failure to analyse this issue justified interference with its discretion and setting aside the injunction.

p. 6
02

Who bears costs

Holding

Costs follow the event; the Appellant, having succeeded, was awarded costs of the appeal.

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs generally follow the event, and the Supreme Court in Jasbir Singh Rai v Tarlochan Singh Rai detailed the parameters for applying that general rule. Since the appeal was merited and the impugned Ruling was set aside, costs were awarded to the Appellant.

p. 7

Legal principles established

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  • An appellate court may interfere with the exercise of discretion by a trial court where the trial court failed to take into account relevant matters
  • A lease for immovable property for a term exceeding one year can only be made by a registered instrument; an unregistered agreement is valid inter partes but gives no protection against third parties

Court orders

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  1. 1.The appeal is allowed with costs to the Appellant
  2. 2.The Ruling and orders of the trial court dated 23rd June 2023 are set aside
  3. 3.The suit be remitted to the trial Court for hearing and final determination before another Court other than Hon Becky Cheloti Mulemia

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi
MCCOMMSU/E1291/2021
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act, with leave to file out of time granted on 9/5/2024

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, having reached the conclusion that the Appeal is merited, thus the Appeal is therefore allowed with costs to the Appellant. The suit be remitted to the trial Court for hearing and final determination before another Court other than Hon Becky Cheloti Mulemia. Orders accordingly.
p. 7Disposition - appeal allowed and remitted
that such an agreement is valid inter partes even in the absence of registration, but gives no protection against the rights of third parties.
p. 6Status of unregistered leases
It reiterates and confirms the firmly settled law, first that a lease for immovable property for a term exceeding one year can only be made by a registered instrument
p. 6Registration requirement for leases over one year
In an interlocutory injunction Application, the Applicant has to satisfy the triple requirements
p. 5Test for interlocutory injunctions
if a prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
p. 6Sequential application of Giella conditions

Issues in the judgment

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minor

The Supporting Affidavit of the Respondent's Director contains internally inconsistent lease dates, which the judgment itself notes: the deponent 'averred (para.2) that the Lease Agreement is dated 21/1/2018 annexure ‘AAA 2’... Nevertheless, under para. 5 of the Afidavit the deponent referred to Lease Agreement dated 21/2/2021 entered with the Appellant for a term of 5 years and 3 months.'

minor

The judgment variously records the trial court case number as 'Nairobi CM’s MCCOMMSU/E1291/2021' and 'Nairobi MCCOMMSU/E1291/2021', and the second lease date is at one point rendered as '21/3/21 (sic.)'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gakui v Golden Gate Cargo Company Limited (Environment and Land Appeal E027 of 2023) [2025] KEELC 4158 (KLR)", Case Analysis (2025). Appeal against Ruling in Nairobi CM's MCCOMMSU/E1291/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4158/eng@2025-05-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.