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ELCDismissedNot stated in the judgment (related ruling in HCC 132 of 2010 referenced)· [2015] KEELC 54 (KLR)

Revital Health Epz Limited v Ashton Apparel Epz Limited [2015] KEELC 54 (KLR)

Environment and Land Court
4 November 2015
1,622 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court dismissed a landlord's bid to evict a tenant and strike out their suit, because no legal basis for striking out pleadings was shown.

What this practically means

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Executive summary

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The defendant/applicant filed a notice of motion dated 23rd September 2014 under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 51 rule 1 of the Civil Procedure Rules, and sections 13(7) and 19(2) of the ELC Act, 2011, seeking an order that the plaintiff give up vacant possession of the suit premises, that the plaint and the reply to the defence to counterclaim be struck out with costs, and that the defendant's counterclaim proceed to formal proof. The defendant contended the plaintiff was in breach of the court's ruling of 11.4.2014 by failing to pay interest of USD 4,155.20 and by delaying in setting the suit down for hearing. The plaintiff opposed, arguing the orders sought were final in nature, mirrored the counterclaim, that triable issues existed, that the delay was explained by the transfer of the matter to the ELC and directions to take hearing dates from the registry, and that the plaintiff had been remitting rent as ordered. The court held that the applicant failed to lay any basis under Order 2 rule 15 of the Civil Procedure Rules for striking out the pleadings, that the ruling of 11.4.2014 contained no default clause and was never appealed, and that the plaintiff's explanation for delay was uncontested. The notice of motion was dismissed with costs to the plaintiff, and the parties were directed to fix the main suit for hearing.

Key legal issues

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01

Whether the plaint and reply to defence to counterclaim could be struck out on the grounds advanced

Holding

The application for striking out failed because the applicant did not invoke or satisfy Order 2 rule 15 of the Civil Procedure Rules, and the submissions did not discuss the grounds for striking out a suit.

Reasoning

The court observed that the motion and supporting affidavit only pleaded breach of a prior ruling, without alleging the plaint was scandalous, vexatious, discloses no cause of action or otherwise offend Order 2 rule 15. The applicant also did not invoke the specific provisions of Order 2 governing striking out of pleadings. Without such a foundation, the court's discretion could not be exercised in the applicant's favour.

p. 3
02

Whether breach of the ruling of 11.4.2014 entitled the defendant to vacant possession and striking out

Holding

No. The ruling of 11.4.2014 contained no default clause, was never appealed, and the plaintiff had offered to secure the disputed interest amount; the relief sought was independent of and not linked to that ruling.

Reasoning

The court examined the ruling of 11.4.2014 which dismissed the injunction application, directed the plaintiff to set down the suit within 30 days and to deposit the last month's rent with interest at 12% per annum, but included no default clause. The defendant never appealed. The plaintiff explained the delay in fixing hearing (transfer to ELC and directions of 3rd July 2014), and this explanation was uncontested. The proper step was to set the suit down for hearing, not bring a fresh motion.

p. 3

Legal principles established

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  • An applicant seeking to strike out a suit must lay a basis under Order 2 rule 15 of the Civil Procedure Rules showing the pleading offends the established principles; a mere allegation of breach of a court order does not suffice.
  • A party cannot convert an unsatisfied interlocutory order into independent final relief through a fresh application; the proper course where an order is unclear or breached is to seek interpretation or enforcement of that order.

Court orders

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  1. 1.The notice of motion dated 23.9.2014 is dismissed with costs to the plaintiff
  2. 2.Parties directed to fix the matter for hearing of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 51 rule 1; Order 2 rule 15
  • Environment and Land Court Act, 2011Sections 13(7), 19(2)
  • Constitution of KenyaArticle 159

Cases cited (3)

  • D.T. Dobie (K) Ltd vs Joseph Mbaria Muchina
    (1980) eKLR
  • Wedlock Malonsey & Others
    (1965) 1 W.L.R 1238
  • Nancy Mwangi vs Airtel Networks (K) Ltd
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules; sections 13(7) and 19(2) of the ELC Act, 2011

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, "Revital Health Epz Limited v Ashton Apparel Epz Limited [2015] KEELC 54 (KLR)", Case Analysis (2015). Not stated in the judgment (related ruling in HCC 132 of 2010 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/54/eng@2015-11-11

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