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ELCAllowedNotice of Motion dated 28th March 2014 (suit particulars not stated in judgment)· [2015] KEELC 750 (KLR)

Babubhai M. Shah v M & M Science Ltd [2015] KEELC 750 (KLR)

High Court of Kenya
27 February 2015
3,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landlord won immediate vacant possession because the tenant ignored a termination notice and filed no tribunal challenge.

What this practically means

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Executive summary

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The Plaintiff/Applicant, a landlord, moved the court by Notice of Motion dated 28th March 2014 under Order 50 Rule 1, Order 40 Rule 2(i) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a mandatory injunction compelling the Defendant, a tenant, to deliver vacant possession of Shop No. 2 on LR. No. 209/4360/4 pending the hearing of the suit. The parties had a 5-year-3-month lease expiring 1st January 2013; the landlord declined renewal, issued a termination notice under Section 4(2) of Cap 301, and the tenant refused to vacate. The Defendant opposed, arguing the notice was not in prescribed form, that a reference was pending at the Business Premises Rent Tribunal ousting jurisdiction, that the application was res judicata given the earlier PMCC No. 3087 of 2013, and that eviction would cause irreparable loss. The court framed four issues: whether a suit or BPRT reference was pending, whether the Defendant remained a tenant, whether the application was res judicata, and what orders to make. It held the lower court suit had abated so nothing was pending; res judicata did not apply as the abated suit was not heard and determined on merit; the tenancy expired on 1st January 2013 and the unopposed Section 4(2) notice took effect on 19th April 2013 under Section 10 of Cap 301, ending the tenancy; and continued occupation amounted to trespass. Finding a plain and obvious case, the court granted the mandatory injunction in terms of prayer No. 2, with costs to the Plaintiff/Applicant.

Key legal issues

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01

Whether a suit dismissed for abatement bars a subsequent suit (res judicata)

Holding

The abated suit was not heard and determined on merit, so res judicata does not apply; no suit is pending at the lower court.

Reasoning

The earlier CMCC No. 3087 of 2013 was dismissed for having abated due to failure to take out summons. Applying Section 7 of the Civil Procedure Act, res judicata requires the matter to have been heard and finally decided. The court followed James Gichuru vs Philip Komu Wahome and invoked Article 159's principle that justice be administered without undue regard to procedural technicalities.

p. 6
02

Whether the Defendant remained a tenant after expiry of the lease

Holding

The tenancy was not a controlled tenancy; the lease expired on 1st January 2013, was not renewed, and the Section 4(2) notice took effect on 19th April 2013 as no reference was filed, terminating the tenancy.

Reasoning

The lease ran for 5 years 3 months governed by its terms, including Clause 14 requiring written agreement for any new tenancy. The Defendant did not file a reference at the Tribunal against the termination notice; the Chairman of the Tribunal confirmed the notice was unopposed. Section 10 of Cap 301 therefore operated to terminate the tenancy on 19th April 2013.

p. 5
03

Whether a mandatory injunction for vacant possession should issue

Holding

Yes. The defendant's continued occupation after termination amounts to trespass; this is a plain and obvious case meriting a mandatory injunction under the Giella principles.

Reasoning

The orders sought were mandatory and capable of disposing of the suit. Relying on Kenya Breweries Ltd vs Washingtone O. Okeyo, such orders are granted where the case is clear and ought to be decided at once or where the defendant steals a march. The lease had expired, the notice took effect, and the defendant's stay was wrongful trespass, establishing the threshold in Giella vs Cassman Brown.

p. 6

Legal principles established

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  • Where a tenant fails to file a reference or notify unwillingness to comply within the appropriate time under Section 10 of Cap 301, the landlord's notice under Section 4 takes effect on the date specified and terminates the tenancy.
  • A tenant holding over after lawful termination of a lease is a trespasser, and mesne profits/damages may be recovered.
  • A mandatory injunction may be granted on an interlocutory application where the case is clear and ought to be decided at once, or where the defendant has stolen a march on the plaintiff.
  • Res judicata only applies where the former suit was heard and finally decided on the merits; a suit dismissed for abatement on a technicality does not bar a subsequent suit.

Court orders

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  1. 1.A mandatory injunction issued against the Defendant to deliver vacant possession of Shop No. 2 on LR. No. 209/4360/4 pending the hearing and determination of the suit, in terms of prayer No. 2 of the Notice of Motion dated 28th March 2014
  2. 2.The Plaintiff/Applicant awarded costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 1
  • Civil Procedure RulesOrder 40 Rule 2(i)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 7
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Sections 4(2) and 10
  • Constitution of KenyaArticle 159

Cases cited (7)

  • James Gichuru vs Philip Komu Wahome & Another
    (2013) EKLR
  • Prashant Sampant vs Fatuma Abgao Mohammed & Another
    (2004) eKLR
  • Samuel Kiiru Gitau vs John Kamau Gitau
    HCCC No. 1249 of 1998 (1998) KLR
  • Kenya Breweries Ltd and Another vs Washingtone O. Okeyo
    Civil Appeal No. 332 of 2000, IEA 109
  • Faircase Development Ltd vs Margaret Apondi Ototch T/A M. A. Kiosk
    (2005) eKLR
  • Kenindia Assurance Co. Ltd vs Njenga Muchiri T/A Njenga Muchiri & Co. Advocates
    (2003) eKLR
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
Jurisdiction invoked
Original civil jurisdiction; application brought under Order 50 Rule 1, Order 40 Rule 2(i) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Babubhai M. Shah v M & M Science Ltd [2015] KEELC 750 (KLR)", Case Analysis (2015). Notice of Motion dated 28th March 2014 (suit particulars not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/750/eng@2015-02-27

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