Revital Health Epz Limited v Ashton Apparel Epz Limited [2015] KEELC 54 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaint and reply to defence to counterclaim could be struck out on the grounds advanced
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.
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.
Whether breach of the ruling of 11.4.2014 entitled the defendant to vacant possession and striking out
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 23.9.2014 is dismissed with costs to the plaintiff
- 2.Parties directed to fix the matter for hearing of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.