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ELCPartially AllowedApplication dated 15th September 2016 in Civil Case No 82 of 2011 (Kadhi's Court cause referenced); suit concerning Plot No 76/MN/Sec II· [2017] KEELC 2234 (KLR)

Masjid Kairat (Mosque) & others v Municipal Council of Mombasa & 3 others [2017] KEELC 2234 (KLR)

High Court of Kenya (Environment and Land Court)
26 July 2017
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 4th defendant/applicant moved the Court by notice of motion dated 15th September 2016 seeking to set aside or vary orders issued on 5th May 2016, which had directed the 23 plaintiffs to continue paying ground rent into Court pending agreement among the 2nd–4th respondents on who should receive rents, in a suit concerning Plot No 76/MN/Sec II arising from Kadhi's Court Civil Case No 82 of 2011. The application was unopposed by the plaintiff and 1st defendant; the plaintiffs pointed out that the order annexed by the applicant was a forgery and annexed instead a Kadhi's ruling of 12th March 2015, while the 2nd respondent opposed variation on the basis that the plaintiffs pay rates and not ground rents. Applying Order 45 rule 1 of the Civil Procedure Rules, the court found no unreasonable delay (the application was filed four months after the order) and noted that although the Kadhi's Court had declined to appoint an administrator in the ruling of 12th March 2015, on a subsequent motion the Kadhi, in the presence of the 2nd and 3rd defendants, certified the applicant as trustee to collect rents from the lessees and tenants of the estate - a fact not before the Court when the impugned order was made. Holding that sufficient cause had been shown, the court reviewed the order and directed the plaintiffs to pay ground rents to the 4th defendant until the Kadhi's order of 12th March 2015 is varied or set aside, an administrator is appointed, or further orders issue. The court declined to determine the question of payment of rates, which forms part of the plaintiffs' prayers in the main suit. The application was allowed with each party bearing their respective costs.

Key legal issues

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01

Whether sufficient cause was shown for review of the order of 5th May 2016

Holding

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

Reasoning

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.

p. 2
02

Whether the application was filed after unreasonable delay

Holding

No unreasonable delay: the application was filed four months after the order

Reasoning

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.

p. 2
03

Whether the question of rates versus ground rent fell for determination

Holding

It did not; the court declined to pronounce on it as it forms part of the plaintiffs' prayers in the main suit

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.The application dated 15th September 2016 is allowed
  4. 4.Each party to bear their respective costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1
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

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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, "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.