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ELCDismissedNotice of Motion dated 29th October 2013 (suit filed 10th September 2013)· [2014] KEELC 560 (KLR)

Gurjeet Singh Bansal v Coastal Kenya Enterprises [2014] KEELC 560 (KLR)

Environment and Land Court
30 May 2014
MGMary M. Gitumbi
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to end a landlord-tenant dispute early, ruling that questions about the tenant's protected status must be decided at a full trial.

What this practically means

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Executive summary

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The Plaintiff, registered owner of L.R. No. 12458/10 in Industrial Area, Nairobi, moved the court by Notice of Motion dated 29th October 2013 seeking the striking out of the Defendant's Statement of Defence and judgment as prayed in his Plaint, including vacant possession. He averred that the Defendant, a roads construction machinery company, had occupied the suit property since 1993 under an oral month-to-month tenancy at Kshs. 110,000 per month, later revised to Kshs. 220,000, and that having sold the property for Kshs. 100 million he had served a notice to vacate by 30th September 2013. He contended the Defendant was not a controlled tenant, so neither the BPRT nor the Chief Magistrate's Court had jurisdiction, and that the defence was frivolous and an abuse of process. The Defendant, through its director Swaraj Singh Bhogal, resisted, noting it had obtained injunctive orders against unlawful eviction and had filed BPRT Case No. 468 of 2013, asserting it was a protected or controlled tenant and that triable issues existed. The court applied the established principles that striking out is a drastic remedy available only in plain and obvious cases where the pleading discloses no arguable case and cannot be redeemed by amendment. Holding that whether a controlled tenancy exists requires evidence at a full trial, the court found the defence raised triable issues and dismissed the application with costs in the cause.

Key legal issues

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01

Whether the Defendant's Statement of Defence should be struck out and judgment entered for the Plaintiff

Holding

The application was dismissed because the defence raises triable issues requiring a full trial

Reasoning

The court reaffirmed that striking out is a harsh, drastic remedy resorted to only in plain and obvious cases where the pleading discloses no arguable case. The Defendant pleaded that it is a controlled tenant under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which cannot be evicted without due process. Whether such a controlled tenancy exists requires evidence tendered at a full trial and cannot be resolved on the pleadings and affidavits at this interlocutory stage.

p. 3

Legal principles established

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  • Striking out a pleading is a drastic remedy granted only in plain and obvious cases where the pleading discloses no arguable case
  • On a striking-out application the court must act cautiously, not deal with the merits, and not express opinions that may prejudice a fair trial

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 29th October 2013 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actnot specified (definition of controlled tenant)

Cases cited (2)

  • Sunday Principal Newspaper Limited
    [1961] 2 ALL E.R. 758
  • D.T. Dobie & Company (Kenya) Ltd Vs Muchina
    [1982] KLR
Jurisdiction invoked
Inherent power of the court to strike out pleadings; notwithstanding that the notice of motion was dismissed, the court exercised jurisdiction over the suit

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, "Gurjeet Singh Bansal v Coastal Kenya Enterprises [2014] KEELC 560 (KLR)", Case Analysis (2014). Notice of Motion dated 29th October 2013 (suit filed 10th September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/560/eng@2014-05-30

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