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ELCDismissedELC Case (Nyeri), plaint dated 22nd September 2014· [2015] KEELC 428 (KLR)

Tekimamo Company Limited v Julius Gitahi Gichuki [2015] KEELC 428 (KLR)

Environment and Land Court
2 June 2015
LWL N Waithaka
2,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner cannot bypass Kenya's Business Premises Rent Tribunal by filing a court case about a controlled tenancy; the Environment and Land Court dismissed the suit with costs.

What this practically means

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Executive summary

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Tekimamo Company Limited sued Julius Gitahi Gichuki by plaint dated 22nd September 2014 seeking vacant possession of Nyeri Municipality Block III/6, mesne profits and costs, together with an interlocutory application to restrain the defendant from occupying or dealing with the suit property. The plaintiff asserted it had no landlord-tenant relationship with the defendant, who took occupation after the death of the registered tenant, Githingi Ngotho, in 2012, and that it never accepted rent from him. The defendant contended he had been a tenant since 2011 with the plaintiff's knowledge, that the deceased tenant had disclosed an intention to sub-let, and that the suit was sub judice a reference before the Business Premises Rent Tribunal and a pending High Court appeal. The court found that the parties had recorded a consent before the Tribunal directing the tenant to deposit rent, showing the Tribunal had not declined jurisdiction. Applying Sections 11 and 12(1)(e) of Cap 301, the court held the Tribunal was not repealed by the Environment and Land Court Act and retains jurisdiction to order recovery of possession and mesne profits against any person in occupation, whether or not a tenant. Since Section 6 of the Civil Procedure Act bars trying a suit whose matter in issue is pending in a forum with jurisdiction, and Section 15 of Cap 301 allows the High Court to be seized of such disputes only by appeal, the court dismissed the suit with costs to the defendant.

Key legal issues

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01

Jurisdiction of the Business Premises Rent Tribunal

Holding

The Tribunal has jurisdiction to hear and determine the dispute; the consent order before it showed it did not decline jurisdiction, contrary to the plaintiff's contention

Reasoning

The court examined Section 11 and 12(1)(e) of Cap 301 and held the Tribunal was not repealed by the Environment and Land Court Act, so it continues to hear controlled tenancy matters as the court of first instance. Its power to order recovery of possession, arrears of rent and mesne profits extends to any person in occupation, whether or not a tenant. The recorded consent directing deposit of rent demonstrated the Tribunal exercised jurisdiction rather than declining it.

p. 5
02

Whether the suit is sub judice the tribunal reference and the pending High Court appeal

Holding

The suit is sub judice and bad in law; Section 6 of the Civil Procedure Act bars trial of a suit whose matter in issue is directly and substantially in issue in a previously instituted proceeding before a court with jurisdiction

Reasoning

Section 6 of the Civil Procedure Act prohibits trying a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties in a court having jurisdiction to grant the relief claimed. Having found the Tribunal has jurisdiction over the possession dispute, the court found the present suit bad in law. Since Section 15 of Cap 301 permits the High Court to be seized of such disputes only by appeal, the court declined a stay and dismissed the suit.

p. 5

Legal principles established

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  • The Business Premises Rent Tribunal established under Section 11 of Cap 301 was not repealed by the Environment and Land Court Act and continues to hear matters reserved for it as the court of first instance, with appeals lying to the High Court under Section 15
  • Under Section 12(1)(e) of Cap 301, the Tribunal's power to order recovery of possession and payment of arrears of rent and mesne profits extends to any person in occupation of premises comprised in a controlled tenancy, whether or not that person is a tenant
  • Where a dispute is directly and substantially in issue in proceedings before a tribunal with jurisdiction, this court may not proceed with the suit; the only lawful route to the High Court is by way of appeal under Section 15 of Cap 301

Court orders

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  1. 1.The suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Landlord Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSections 11, 12(1)(e), 15
  • Environment and Land Court Act
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 6

Cases cited (2)

  • Nashibas & Company Ltd vs. Nyali Air conditioning
  • Beatrice Nduta Kiarie Vs John Mwangi Thuo
    Nakuru, ELC No. 290 of 2012
Jurisdiction invoked
Environment and Land Court Act; the court declines to exercise jurisdiction over a dispute reserved for the Business Premises Rent Tribunal under Cap 301

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, "Tekimamo Company Limited v Julius Gitahi Gichuki [2015] KEELC 428 (KLR)", Case Analysis (2015). ELC Case (Nyeri), plaint dated 22nd September 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/428/eng@2015-06-02

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