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ELCAllowedNotice of Motion dated 29th January 2015 in Originating Summons dated 27th November 2014· [2018] KEELC 639 (KLR)

Dhirajlal J Shah & Rajesh Shah (Administrators of the Estate of Juthalal Virpal Shah) V Bonny Fashions Limited [2018] KEELC 639 (KLR)

High Court of Kenya
15 November 2018
LKL. Komingoi
1,797 words in judgment
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The bottom line

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Kenya's High Court struck out a tenant's defence because no rent tribunal reference was filed before the termination notice took effect, ending the tenancy.

What this practically means

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Executive summary

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The applicants moved the court by Notice of Motion dated 29th January 2015 under Order 2 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking striking out of the respondent's defence filed 17th December 2014 and judgment as pleaded in their originating summons dated 27th November 2014. They contended the defence was frivolous, vexatious and an abuse of process, that a termination notice served on 27th March 2014 took effect on 1st June 2014 unchallenged, and that no reference was filed before the Business Premises Rent Tribunal as required by Section 6(1) of Cap 301. The respondent, through director Sanjay Kapoor, opposed, relying on discussions said to have led to continued occupation, an order of 6th August 2015 granting leave to file a reference out of time, continued payment of rent, and the submission that striking out a defence is a draconian remedy granted sparingly. Komingoi J framed two issues: whether the defence ought to be struck out and judgment entered, and costs. The court held the out-of-time leave order was irregular, having been granted more than a year after the notice took effect, with no evidence a reference was filed or served within seven days as Section 6(2) requires. The tenancy therefore ceased on 1st June 2014 and continued rent payments were of no consequence. The defence was found to be a mere denial raising no triable issues. Applying the Court of Appeal's reasoning in Jitendra Mathurdas Kahabar vs Fish and Meat Limited, the court struck out the defence, entered judgment for the applicants as pleaded, and awarded the applicants costs of both the application and the originating sums. Delivered in Nairobi on 15th November 2018.

Key legal issues

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01

Whether the Tribunal's order of 6th August 2015 granting leave to file a reference out of time preserved the tenancy

Holding

The order was irregular, being granted more than one year after the notice had taken effect, and there was no evidence a reference was filed or served as required.

Reasoning

Section 6(1) of Cap 301 suspends a tenancy notice only upon filing of a reference before the notice takes effect. The orders of 6th August 2015 came over a year after the notice took effect on 1st June 2014. The Tribunal was also required to serve notice of reference within seven days under Section 6(2), which was not shown to have been done. Continued payment of rent could not revive the terminated tenancy.

p. 2
02

Whether the defence disclosed triable issues

Holding

The defence was a mere denial of every allegation in the originating summons and raised no triable issues.

Reasoning

Having found no tenancy relationship existed after 1st June 2014, the court examined each paragraph of the defence and found it a bare denial, including denial of the tenancy notice itself, contradicted by the undisputed service of the notice dated 27th March 2014. A defence consisting of denials does not warrant trial and is properly struck out under Order 2 Rule 15.

p. 3

Legal principles established

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  • Where no reference under Section 6(1) of Cap 301 is filed before the tenancy notice takes effect, the landlord-tenant relationship ends and the tribunal loses jurisdiction over the former controlled tenancy.
  • A defence that is a mere denial raising no triable issues ought to be struck out.

Court orders

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  1. 1.That the defence filed by the respondent on 17th December 2014 be and is hereby struck out and judgment is entered in favour of the applicants as pleaded in the originating summons dated 27th November 2014
  2. 2.That costs of this application and of the originating summons be borne by the respondent
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules 2010 and Section 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dhirajlal J Shah & Rajesh Shah (Administrators of the Estate of Juthalal Virpal Shah) V Bonny Fashions Limited [2018] KEELC 639 (KLR)", Case Analysis (2018). Notice of Motion dated 29th January 2015 in Originating Summons dated 27th November 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/639/eng@2018-11-15

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