Umra Limited t/a Malindi Supermarket v Mohamed Swaleh Hemed & another [2014] KEELC 88 (KLR)
The bottom line
#A Kenyan court blocked a landlord from auctioning a tenant's goods over a disputed rent hike until the rent tribunal decides what rent is actually owed.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction should issue to preserve the status quo pending the Tribunal's determination of the payable rent
An injunction was warranted because the Defendants' distress for contested rent would render the pending Tribunal reference nugatory.
The court found the tenancy controlled under Cap 301 and the rent increase from Kshs.7,000 to Kshs.100,000 per month contested before the Tribunal. Levying distress before the Tribunal determined the payable rent would prejudice the Plaintiff and render the Reference nugatory. The injunction preserves the status quo; after determination, the Defendant may levy distress for arrears as found payable.
Whether the Defendants' res judicata/sub judice objections based on Malindi CMCC No. 49 of 2013 succeed
The court observed that the earlier subordinate court suit seeking injunctive orders was null and void for want of jurisdiction, implicitly rejecting the objections.
The court held that subordinate courts lack jurisdiction to grant injunctions pending BPRT matters; consequently the earlier CMCC proceedings in which the Plaintiff sought injunctive orders were null and void. This undermined rather than supported the Defendants' res judicata and sub judice objections, and the application was allowed as prayed.
Legal principles established
#- Only the High Court/Environment and Land Court may issue an injunction pending the hearing and determination of a matter before the Business Premises Rent Tribunal; a subordinate court lacks jurisdiction to grant such injunctions.
Court orders
#- 1.An injunction issued restraining the 1st and 2nd Defendants, their servants, agents, representatives and/or employees from executing the proclamation of attachment and sale dated 9th May 2014 against the Plaintiff, pending the hearing and determination of BPRT Case No. 94 of 2013
- 2.Maintenance of the status quo pending determination of the payable monthly rent by the Business Premises Rent Tribunal
- 3.The Plaintiff's Application dated 14th May 2014 allowed as prayed
- Jurisdiction invoked
- Jurisdiction of the High Court/Environment and Land Court to grant injunction pending hearing before the Business Premises Rent Tribunal under the Landlord and Tenant (Shops and Catering Establishment) Act (Cap 301)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Umra Limited t/a Malindi Supermarket v Mohamed Swaleh Hemed & another [2014] KEELC 88 (KLR)", Case Analysis (2014). (Environment and Land Case, Malindi – application dated 14th May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/88/eng@2014-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.