Osman & another v Kenya Railways Corporation & 6 others

d. That this Honourable Court be pleased to issue an order of injunction restraining the 1st Defendant, its agents, servants, employees and /or any person claiming through or under it from evicting, interfering with, dispossessing, or in any manner whatsoever dealing with or taking possession of the property known as Kileleshwa House Number K16 pending the hearing and determination of the suit. e. That this Honourable Court be pleased to issue an order of injunction restraining the 1st Defendant, its agents, servants, employees and /or any person claiming through or under it from giving eect to or implementing the Notice to Terminate Tenancy dated 16th April 2026 and/or from demanding vacant possession of Kileleshwa House Number K16 by 15th July 2026 pending the hearing and determination of the suit. f. That the costs of this application be provided for. g. That this Honourable court be pleased to grant such further and /or other relief as it may deem t and just in the circumstances. 2. The application is premised on grounds on its face and on the 1st Plainti’s supporting adavit. He avers that he entered into a commercial lease agreement with the 1st Defendant in respect of House No. K16, Kileleshwa for a xed term of six (6) years expiring in 2027 and upon taking possession, he invested substantial nancial resources in renovating the premises to commercial standards and commenced business through Tropical Promotions and Constructions Limited, and has always complied with terms of the lease including timely payment of utility charges and rent. 3. He outlined previous litigation history revolving around the suit property, which started with him ling CMELC No. E407 of 2022 to challenge a defective Notice to vacate dated 28th October 2022 issued to him by the 1st Defendant referencing Kileleshwa house No. K6 and purporting to evict him from the suit property, House No. K16. He points out that on 6th January 2023, he obtained a temporary injunction in the said matter, restraining the 1st Defendant from evicting him from the suit premises, with the said Orders being upheld by this Court in ELC Appeal No. E155 of 2024. He claims notwithstanding the said Orders, the 1st and 2nd Defendants repeatedly invaded the suit premises between February 2023 and October 2024, including on 8th February 2023, when they carted away their properties and assaulted them. 4. He contends that on 4th December 2025, Judgement was delivered in CMELC No. E047 of 2022 holding that the 1st Defendant unlawfully terminated the lease and a permanent injunction was issued against the 1st Defendant restraining it from interference with his occupation of the suit premises. Further, that during that period, the ODPP led Misc. Application No. E1798 OF 2025 seeking orders to access and search the premises of the 1st Defendant and prepare an inventory of the items illegally carted away from the suit premises. Subsequently, pursuant to Orders issued in the said matter, the ODPP carried out an inventory which established that many of the goods carted away had been damaged, vandalized and some stolen while in the 1st Defendant’s control. He reiterates that thereafter, the Court issued an Order dated 2nd October 2025 directing the DCI to take custody of the said properties for safe keeping as exhibits. He claims that the said goods have been valued at kshs.260 million pursuant to a valuation report dated 23rd April 2025. 5. It is his case that against the aforementioned backdrop, on 16th April 2026, the 1st Defendant served him a fresh Notice to terminate tenancy requiring him to vacate the suit premises by 15th July 2026. He terms the impugned notice unlawful on the basis that it was served https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5868/eng@2026-09-28 2

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during the pendency of this suit. He avers that if the 1st Defendant is not restrained, an eviction would cause irreparable damage and render reliefs sought in the suit academic. Response 6. The application is opposed by the 1st and 2nd Defendants vide the replying adavit of Justine Omoke, the 1st Defendant’s Principal Real Estate Ocer. He conrms that the 1st Defendant is owner of Kileleshwa House No. K16 and admits that it entered the lease dated 27th October 2021. He however contends that the suit is res judicata as its subject, that is the Lease in dispute was litigated in MC ELC No. E407 of 2022, which the Plaintis herein led to challenge the 1st Defendant’s termination notice dated 28th October 2022, issued on the basis that they had failed to make quarterly payments and also on the basis of the 1st Defendant’s intention to utilize the suit premises for its operations. He insists that the Chief Magistrate’s Court did not give an ex parte injunctive order stopping the eviction but the Plaintis obtained a temporary injunction dated 6th January 2023 which allowed them to resume occupation. He also conrms that the 1st Defendant led an application in ELCLA No. E155 of 2024 seeking stay of the Court’s Orders in MC ELC No. E407 of 2022 pending determination of the Appeal, which application was dismissed and it subsequently withdrew the said Appeal as it opted to litigate the substantive issues in MC ELC No. E407 of 2022, where judgement was entered on 4th December 2025. 7. He argues that contrary to the Plaintis’ assertions, vide the said Judgement, the Court did not issue a permanent injunction in the Plaintis’ favour, but only restrained the 1st Defendant from evicting the Plainti from the suit property unless such eviction is within the law and in line with the Lease Agreement dated 27th October 2021. 8. He claims that the Plaintis have distorted facts of the proceedings in Milimani MCCR MISC. No. E1798 OF 2025 and avers that it was led following the Plaintis’ complaints that the 1st Defendant had stolen its goods while the same had been distressed for rent and the 1st Defendant had never denied them access, and had even requested them to collect the said goods vide a letter dated 18th August 2024. He acknowledges that an inventory was carried out and the DCI made a report dated 29th September 2025, noting that the said goods were still in the 1st Defendant’s possession. 9. He contends that the Plaintis have enjoyed continuous quiet and uninterrupted possession of the suit premises but they have refused to remit rent as per the terms of the Lease thus the 1st Defendant issued a fresh Notice of termination dated 16th April 2026, giving them three (3) months’ notice to vacate the suit premises but instead of heeding to the notice, they instituted this suit seeking to frustrate the 1st Defendant. He states that vacating the suit premises during the pendency of the suit will not aect the Plaintis’ cause of action which is a claim for damages that can be compensated. Further, that they came to Court with unclean hands as they failed to disclose that they are in rent arrears. He annexed the Plaintis’ rent account statement. 10. In response, the Plaintis led a further adavit sworn by the 1st Plainti. He insists that the application is not res judicata since the subject matter is the Notice to terminate tenancy dated 16th April 2026 that was not adjudicated in MCELC No. E407 of 2022.He insists that the notice is issued in bad faith to circumvent the judgement in the said matter. He denies being in rent arrears and points out that the 1st Defendant’s counterclaim for arrears was dismissed in MCELC No. E407 of 2022 and contends that he has never been distressed for rent. He attached copies of bank statement for rent payment for 1st January to 18th June 2026. He also attached police abstracts and photographs alleged to depict instances of invasions by the 1st Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5868/eng@2026-09-28 3

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11. The 3rd to 6th Defendants did not participate in the application. 12. The application was canvassed by way of written submissions. Submissions 13. The Plaintis submit that they have established the threshold for injunctions set in the case of Giella v Cassman Brown (1973) EA 358 as they have established a prima facie case founded on the lease dated 27th October 2021., which has been subject of litigation in MCELC E407 of 2022. Further, that the fresh Notice to terminate tenancy dated 16th April 2026 is unlawful as it does not arise from any breach, but only seeks to defeat rights that have been upheld by the Court in MCELC E407 of 2022. They also submit that they stand to suer irreparable harm as they have invested substantial resources in renovating the suit property to commercial standards and in establishing business operations and no damages can adequately compensate the operational continuity and business goodwill associated with a specic, established commercial address. Further, that balance of convenience tilts in favour of granting the Orders as sought. To buttress their averments, the Plaintis relied on the following decisions: Nguruman Ltd v Jan Bonde Nielsen & 2 Others, [2014] eKLR, Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR and others which the court has carefully considered. 14. On their part, the 1st and 2nd Defendants submit that the application is barred by the doctrine of res judicata, in that this suit raises issues that are substantially similar as those determined in MCELC NO. E407 of 2022. Further, that the Plaintis have not demonstrated a prima facie case as the Notice of termination of the Lease dated 16th April, 2026 is valid, made pursuant to Section 57 (d) of the Land Act. They further submit that the Plaintis have failed to remit rent due as per the terms of the Lease Agreement. They also submit that they will be prejudiced if the Orders sought are granted as the Plainti will enjoy quiet possession of the suit premises without remitting rent. They point out that there is no prayer for injunctive reliefs in the plaint and submit that it is trite law that an application for a temporary injunction must generally be anchored in a substantive prayer in the main suit Further, that the balance of convenience tilts in their favour. 15. To buttress their averments, the 1st and 2nd Defendants relied on the following decisions: John Florence Maritime Services Limited & another v Cabinet Secretary Transport &Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] eKLR, Samuel Kipkorir Ngeno and Another v Local Authorities Pension Trust (Registered Trustees) and Another (2013) eKLR, Francis Muiruri v Bernard Gathuku Ngugi [2007] KEHC 270 (KLR). Analysis and Determination 16. Upon consideration of the instant Notice of Motion application including the respective adavits and rivalling submissions, the only issue for determination is whether the Plaintis have demonstrated the threshold for grant of interim injunction restraining the 1st and 2nd Defendants from the suit property, pending outcome of this suit. 17. The 1st Plainti and the 1st Defendant do not dispute entering into the Lease Agreement dated 27th October 2021 over Kileleshwa House No. K.16, for a period of six ( 6) years from 1st February 2021. It is also not disputed that the 1st Defendant previously sought to terminate the Plaintis' occupation through the notice dated 28th October 2022, which the Plainti challenged in CMELC No. E407 of 2022, culminating in the judgement entered on 4th December 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5868/eng@2026-09-28 4

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18. During the pendency of this suit which was led on 20th February 2026, the 1st Defendant issued the Plaintis with a fresh notice to vacate dated 16th April 2026, on the basis that it intends to utilize the property and that the Plaintis were in rent arrears, alleging that rent payable as per the impugned lease was Kshs.1,680,000/= per annum, subject to a 10% escalation every two years, payable quarterly in advance, while the Plaintis only pay kshs.140,000/= periodically. 19. The Plaintis now challenge the said notice on the basis that it will prejudice them as it will render their prayers sought in the Plaint, academic and culminate in their eviction from the suit property which they have leased for six (6) years and invested substantial nances in. They also argue that in CMELC No. E407 of 2022, the Court had permanently restrained the 1st Defendant from evicting them. The Plaintis also deny the allegation that they are in rent arrears and contend that the 1st Defendant's counterclaim for rent arrears was dismissed in CMELC No. E407 of 2022. 20. The 1st and 2nd Defendants insist that the Plaintis are not deserving of the Orders sought because there is no substantive prayer for an injunction in the Plaint. They also contend that the application is res judicata, since the Plaintis seek to relitigate termination of the impugned lease which has already been determined in CMELC No. E407 of 2022. On their part, the Plaintis argue that the dispute concerns the fresh notice to terminate lease dated 16th April 2026, which could not have been determined in the earlier proceedings. 21. In line with the principle established in the case of Giella v Cassman Brown & Co Ltd (1973) E A 358, I will proceed to decipher whether the Plaintis have established a prima facie case to warrant the orders of interlocutory injunction as sought. I will further rely on the denition of a prima facie case as articulated in the case of Mrao Ltd v First American Bank Limited (2003) KLR 125. 22. I note the fulcrum of the dispute herein is centered on a Lease Agreement and a Notice to terminate the said Lease. The Plaintis claim that they are not in rent arrears and seek protection from eviction on the basis that they have a subsisting Lease, have invested heavily on the suit property and their businesses will suer irreparable loss. I note pursuant to Orders issued in the aforementioned suit which was before the CM’s Court, there was no bar against the Defendants from issuing a fresh notice to terminate the Lease so long as it was in line with the terms of the Lease. 23. Looking at the documents presented by the Plaintis and on perusal of the impugned Lease, on terms of issuance of notice, I note it required either party to issue a Notice of three (3) months. Further, the Lease would be terminated where the Lessee was in default of rent. There is no indication in the Lease that the 1st Defendant is estopped from issuing a notice if there is pending litigation or during subsistence of the Lease. I have also perused the prayers sought in the Plaint, and I opine that there is none seeking injunctive Orders. The Plaintis’ except for insisting they have been paying rent have not provided the statement of accounts for the said rents, they have so far paid from the commencement of Lease todate. The Plaintis further claim that the 1st Defendant took their properties and that was the reason of ling this suit. 24. It is trite that injunctive remedies are equitable remedies and courts cannot alter the terms of contract between parties. Further, a party seeking orders of injunction must come to court with clean hands. But from the explanations tendered, noting that this matter has been previously litigated in the lower court as well as an Appeal at the ELC, I opine that the Orders the Plaintis are seeking against the Defendants are futile as they have been issued with a legal notice to vacate the suit property as per the terms of the Lease, which is a contract binding their relationship. In my view, I do not nd any illegality in the notice the 1st Defendant issued. I opine that the prayers for damages that are sought by the Plaintis can still be dealt with irrespective of whether there is an injunction or not. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5868/eng@2026-09-28 5

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25. In the circumstance, I nd that the Plaintis have not established a prima face case as against the Defendants to warrant the orders as sought. 26. In further associating myself with the decision Nguruman Ltd. Vs. Jan Bonde Nielsen (2014) eKLR where the Court of Appeal held that in instances where a party fails to establish a prima facie case, the court need not proceed to make a determination of the other two limbs on injunction, I will hence decline to deal the said other two limbs. 27. In the foregoing, I nd the instant Notice of Motion application dated the 4th May, 2026 unmerited and will dismiss it. 28. Costs will be in the cause DATED SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Weyombo and Anyona for Plaintis Dachi for 1st and 2nd Defendants Tomno holding brief for Kurui for 3rd Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5868/eng@2026-09-28 6

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