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ELCPartially AllowedELC Case (Plaintiffs' Notice of Motion dated 15th December 2014; Defendant's Preliminary Objection dated 5th February 2015)· [2015] KEELC 502 (KLR)

Kanubhai Somabhai Patel & another v Rapid Communications Limited [2015] KEELC 502 (KLR)

Environment and Land Court
21 April 2015
3,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nairobi court ordered a company that overstayed its lease to vacate within three months, but refused immediate eviction.

What this practically means

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Executive summary

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This Environment and Land Court ruling by P. Nyamweya, J, delivered at Nairobi on 21st April 2015, determined together the Plaintiffs' Notice of Motion dated 15th December 2014 seeking a mandatory injunction compelling the Defendant to hand over vacant possession of Land Reference No. 1870/VI/86 Cedar Road, off Lantana Road, Westlands, Nairobi, and the Defendant's Preliminary Objection dated 5th February 2015. The Plaintiffs, registered owners, had leased the property to the Defendant for one year from 1st February 2013; the lease expired on 31st January 2014, and a prior conditional injunction requiring rent payment on the 1st of each month had lapsed because the Defendant paid November and December 2014 rent late and the six-month duration had expired. On the preliminary objection, the court applied Mukisa Biscuit, holding the leave-to-withdraw ground required factual ascertainment, and that the sub judice ground under section 6 of the Civil Procedure Act failed because ELC Misc. Case No. 105 of 2013 had been concluded by rulings of 28th May 2014 and 1st August 2014. On the merits, although the tenancy was a controlled tenancy under the Landlords and Tenants (Shops, Hotels and Catering Establishments) Act and the parties should have gone to the Business Premises Tribunal, the court invoked sections 1A, 1B and 3A of the Civil Procedure Act to bring the dispute to an expeditious end. The court ordered the Defendant to hand over vacant possession after three months, pay monthly rent punctually from 1st May 2015, and face eviction on default. Each party was to bear its own costs. The claim was partially allowed: possession was granted but deferred for three months rather than immediately.

Key legal issues

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01

Whether the preliminary objection was sustainable

Holding

It failed: the leave-to-withdraw ground required facts to be ascertained, and the sub judice ground failed because nothing was pending in ELC Misc. Case No. 105 of 2013, having been disposed of by rulings of 28th May 2014 and 1st August 2014.

Reasoning

The court applied Mukisa Biscuit to test whether the objection raised pure points of law. The withdrawal ground required factual ascertainment. On section 6 of the Civil Procedure Act, although the parties and subject matter overlapped, the earlier matter had been concluded by the rulings of 28 May 2014 and 1 August 2014, so no parallel litigation subsisted to be stayed.

p. 4
02

Whether the Plaintiffs were entitled to the mandatory injunction for vacant possession

Holding

Substantially granted, but structured as a three-month notice to hand over vacant possession with conditional rent payment and liberty to evict on default, having regard to the controlled tenancy and sections 1A, 1B, 3A of the Civil Procedure Act and section 4 of the Landlords and Tenants Act.

Reasoning

The lease had expired and the conditional injunction had lapsed both by the Defendant's late payment of rent and by effluxion of the six-month period. The court expected the parties to resort to the Business Premises Tribunal but, absent evidence of such action, used its overriding jurisdiction to bring the dispute to an expeditious end while respecting the notice requirements applicable to a controlled tenancy.

p. 5

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • A mandatory injunction requires special circumstances over and above a prima facie case, and is granted only in clear cases
  • Where a suit is filed involving the same issues and parties as a previously pending suit, the later suit should be stayed under section 6 of the Civil Procedure Act

Court orders

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  1. 1.The Defendant shall hand over vacant possession of Land Reference No. 1870/VI/86 Cedar Road, off Lantana Road, Westlands, Nairobi to the Plaintiff at the expiry of 3 months from the date of the ruling
  2. 2.The Defendant shall during the said three months promptly pay the monthly rent due on the 1st day of each month with effect from 1st May 2015
  3. 3.Upon default of either of the first two orders, the Plaintiff shall be at liberty to evict the Defendant from the suit property
  4. 4.Parties shall be at liberty to apply
  5. 5.Each party shall bear their own costs of the Notice of Motion dated 15th December 2014 and the Preliminary Objection dated 5th February 2015

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 25; Order 25 Rule 2(2)
  • Landlords and Tenants (Shops, Hotels and Catering Establishments) Actsections 4, 7, 12(1)(a) and 12(4)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Speaker of the National Assembly vs Hon James Njenga Karume
    Civil Appeal No. 92 of 1992
  • International Centre for Policy and Conflict vs Attorney General & Others
    Misc. Civil Cause No. 226 of 2013
  • African Airlines International Limited vs Eastern and Southern Development Bank
    (2013) eKLR
  • Dimken Kenya Limited & 4 Others vs Barclays Bank of Another
    (2007) eKLR
  • Jaj Super Power Cash and Carry Ltd vs Nairobi City Council & 20 Others
    Civil Appeal No. 111 of 2012
  • Ahmed Ibrahim Suleiman & Another vs Noor Khamis Surur
    (2013) eKLR
  • Kenya Breweries Ltd and Another v Washington Okeyo
    (2002) 1 E.A. 109
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (original civil jurisdiction of the Environment and Land Court over the leased premises)

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, "Kanubhai Somabhai Patel & another v Rapid Communications Limited [2015] KEELC 502 (KLR)", Case Analysis (2015). ELC Case (Plaintiffs' Notice of Motion dated 15th December 2014; Defendant's Preliminary Objection dated 5th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/502/eng@2015-04-21

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