Masjid Kairat (Mosque) & others v Municipal Council of Mombasa & 3 others [2017] KEELC 2234 (KLR)
The bottom line
#Kenya's High Court in Mombasa allowed ground rents to be paid to a certified trustee instead of into Court after review under Order 45 rule 1.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown for review of the order of 5th May 2016
Review granted: the applicant had been certified by the Kadhi as trustee to collect rents, a fact not placed before the Court when the earlier order was made, so the order requiring rent deposits in Court was varied
The court found that the Kadhi's Court, on a motion dated 12.3.2015, had certified the applicant as trustee to collect rents from lessees and tenants of the estate. This material was not before the Court when the 5th May 2016 order was made, and the 2nd respondent conceded the existence of such an arrangement. Sufficient cause under Order 45 rule 1 was therefore established.
Whether the application was filed after unreasonable delay
No unreasonable delay: the application was filed four months after the order
None of the parties raised delay. The application was made in September of the same year, four months after the order of 5th May 2016, which the court held could not be said to be unreasonable delay.
Whether the question of rates versus ground rent fell for determination
It did not; the court declined to pronounce on it as it forms part of the plaintiffs' prayers in the main suit
The 2nd respondent argued the orders should not be varied because the plaintiffs pay rates and not ground rents. The court held that payment of rates was not for determination in the application under review, confirming only that the plaintiffs should also pay ground rent pending agreement among the 2nd–4th respondents on who should receive rents.
Legal principles established
#- Review under Order 45 rule 1 lies upon discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay
- Where a party is already authorised by a subsisting order to collect ground rents, an interim order requiring such rents to be paid into Court ought to be reviewed in favour of that party
Court orders
#- 1.The order of 5th May 2016 requiring the plaintiffs to deposit ground rent in Court is reviewed and set aside to that extent
- 2.The plaintiffs shall henceforth pay their ground rents to the 4th defendant until the order of the Kadhi dated 12th March 2015 is varied and/or set aside, or an administrator of the estate is appointed, or pending further orders from any Court on application of the parties
- 3.The application dated 15th September 2016 is allowed
- 4.Each party to bear their respective costs
- Jurisdiction invoked
- Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction); originating suit before the Court involving Kadhi's Court cause No 82 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masjid Kairat (Mosque) & others v Municipal Council of Mombasa & 3 others [2017] KEELC 2234 (KLR)", Case Analysis (2017). Application dated 15th September 2016 in Civil Case No 82 of 2011 (Kadhi's Court cause referenced); suit concerning Plot No 76/MN/Sec II. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2234/eng@2017-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.