Unity Auto Garage (Nairobi) v Kenya Railways Corporation (Environment and Land Case E065 of 2024) [2025] KEELC 4194 (KLR)
The bottom line
#Kenya's Environment and Land Court protected a Nairobi tenant with an eviction injunction and gave a defendant a second chance after a default judgment was entered.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant's Application is merited.
- 2.Whether the Respondent's Application is merited.
- 3.Who pays the costs of both Applications?
Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction
Yes - the Plaintiff asserted a valid Lease Agreement, paid rent acknowledged by receipt, and the court held a prima facie case was established, being guided at this stage by preservation of the subject matter.
The Plaintiff demonstrated a right arising from the offer for lease dated 19/06/2023, payment of Kesh 1,535,000 acknowledged by receipt, vacant possession granted, and substantial investment. The court applied Nguruman, holding that at the interlocutory stage it does not hold a mini trial but only asks whether on the face of it the applicant has a right threatened with violation.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
Yes - the dispute concerns land, which is unique, and the court would not hold the harm easily compensable in damages.
Relying on Panari Enterprises Ltd v Lijoodi, the court reasoned that although rental payments can be ascertained, the case is ultimately about land and its use, and land is unique; no one parcel can be equated in value to another, so damages would not be an adequate remedy if eviction proceeded.
Whether the balance of convenience favours the Plaintiff
Yes - the Plaintiff was in possession and would be prejudiced by eviction before the suit is heard.
The court noted the Plaintiff has been in possession of the suit land and eviction before hearing and determination would prejudice him, while no equivalent prejudice to the Defendant was demonstrated sufficient to outweigh that.
Whether the interlocutory/default Judgment of 03/06/2024 should be set aside
Yes - the court was persuaded there were good reasons supporting the setting aside application and that the Applicant was deserving of the orders.
Applying Order 12 rule 7 of the Civil Procedure Rules and the principles in Kimani Kigano and Shah v Mbogo, the court considered service, reasons for non-attendance and the draft defence. It found setting aside ensures a fair and just process allowing both parties to fully present their case, and that the Applicant deserved the orders.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show the balance of convenience lies in his favour.
- A default judgment entered without proper service is irregular and must be set aside ex debito justitiae; a regular default judgment may be set aside in the court's unfettered discretion upon such terms as are just.
- The power to set aside an ex parte judgment is discretionary, unlimited if properly exercised, and must be exercised on evidence and sound legal principles; a reasonable defence on the face of the pleadings inclines the court towards setting aside.
- Damages are not always a suitable remedy where a plaintiff has established a clear legal right or breach in respect of land.
Court orders
#- 1.Temporary injunctive order restraining the Defendant/Respondent, its employees, agents, servants, assigns and anybody claiming under them from evicting the Plaintiff/Applicant, committing acts of illegal trespass or alienating the unsurveyed KR land siding off Enterprise Road between Changamwe Road & Dakar Road behind KCC within Nairobi Industrial Area measuring approximately 2.0 acres pending the hearing and determination of the suit
- 2.The Officer Commanding Station (OCS), Railway Police Station directed to assist in the enforcement of the orders
- 3.The interlocutory Judgment entered on 03/06/2024 set aside
- 4.Plaintiff awarded throw away costs of Kshs. 100,000/= within 30 days
- 5.In default of payment, the interlocutory Judgment shall stand reinstated
- 6.Mention on 18/06/2025 for Directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute; applications brought under the Civil Procedure Rules, 2010 (Order 12 rule 7 as read with rule 2; Order 10 rule 10)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
At this interlocutory stage the Court is more concerned with preserving the subject matter of the suit. It is therefore my finding that the Plaintifi has established a prima facie case.
there is no doubt that the Plaintifi has been in possession of the suit land and he would be prejudiced if he is evicted before his case is heard and determined. The balance of convenience therefore tilts in his favour.
Temporary injunctive order is hereby issued restraining the Defendant/Respondent either by themselves, their employees, agents, servants, assigns and/or anybody else claiming under them from evicting the Plaintifi/Applicant and/or committing acts of illegal trespass
The interlocutory Judgment entered on 03/06/2024 is hereby set aside.
The Plaintifi is hereby awarded throw away costs of Kshs. 100,000/= within 30 days from the date hereof.
By allowing both parties to fully present their case, the Court can reach a more just and equitable decision based on all available evidence and arguments.
Issues in the judgment
#Paragraph numbering is erratic - the number 43 is used repeatedly for several different paragraphs throughout the Analysis and Determination section.
The names of the actual parties are not given anywhere in the judgment; they are referred to only as Plaintiff/Applicant and Defendant/Respondent.
The orders of the Notice of Motion dated 04/06/2024 appear granted implicitly through the setting aside of the interlocutory Judgment, but the judgment does not expressly grant leave to file a Defence out of time as sought in prayer (iii).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unity Auto Garage (Nairobi) v Kenya Railways Corporation (Environment and Land Case E065 of 2024) [2025] KEELC 4194 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4194/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.