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ELCDismissed· [2018] KEELC 2792 (KLR)

Zulfqar Alibhai & Shahina Alibhai trading as Sky Fries v Technical University of Mombasa [2018] KEELC 2792 (KLR)

Environment and Land Court of Kenya at Mombasa
4 July 2018
CYC. Yano
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a tenant break into premises it had locked itself, dismissing its application with costs.

What this practically means

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Executive summary

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The Plaintiff, a restaurateur, moved the court by Notice of Motion dated 3rd August 2017 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking leave to break into and enter the 5th floor of the Engineering Block at the Defendant's Tudor campus in Mombasa, to cart away its tools of trade and wares under police supervision, and an order that the Defendant deposit Kshs.600,000 in court as payment in lieu of notice. The parties had executed a six-year lease dated 14th November 2014 at a monthly rent of Kshs.100,000, commencing 1st March 2015. The Plaintiff alleged persistent breaches of the lease and oral representations, including failure to repair sewerage, lighting, wiring and lifts, and arbitrary restriction of access, prompting it to close and lock the restaurant in December 2016. The Defendant, through a replying affidavit of Serah Okumu, contended that the Plaintiff was in rent arrears of Kshs.600,000, locked the premises on its own volition, and that no notice to terminate the tenancy had been issued. In submissions, the Plaintiff invoked the Giella v Cassman Brown test and argued that an injunction could issue against a high-handed and oppressive party. The court held that the underlying issue was the locked premises, which the Plaintiff itself had locked and left; it would be illogical and absurd to grant break-in orders to the party that caused the lockout. As no party had terminated the tenancy, the deposit order in lieu of notice also failed. The question of who breached the lease was reserved for trial. The application was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff was entitled to break-in and removal orders in respect of premises it had itself locked

Holding

The orders were refused because the Plaintiff locked the premises of its own volition and left, and the court's discretion could only be exercised where the defendant had locked the premises

Reasoning

The court found the underlying issue to be the locked premises, which the Plaintiff conceded it locked and left. The Defendant only demanded rent arrears and never terminated the tenancy. Since the Plaintiff was the author of the act complained of, granting break-in orders would be illogical and absurd; the equitable discretion could not aid a party in that position, and the question of who breached the lease was reserved for trial.

p. 2
02

Whether the Defendant should deposit Kshs.600,000 in court as payment in lieu of notice

Holding

Refused because no termination of the tenancy by either party was shown

Reasoning

The court noted that the tenancy remained in existence; the Defendant had never issued a notice to terminate and the Plaintiff had not terminated either. Absent termination, there was no legal basis to compel a deposit in lieu of notice. The court confined itself to the interlocutory material and did not determine who was in breach of the lease.

p. 2

Legal principles established

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  • A court will not grant break-in orders to a party that itself locked the premises; the plaintiff cannot benefit from its own act
  • An order for deposit of rent in lieu of notice cannot issue where termination of the tenancy has not been established
  • Interlocutory applications do not determine the merits of who is in breach of the lease; that is reserved for trial

Court orders

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  1. 1.The Plaintiff's application dated 3rd August 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 51 Rule 1
  • Unnamed Act (likely the Land Act, as cited in submissions)Section 4(1)

Cases cited (2)

  • Giella –v- Cassman Brown & Co Ltd
    (1973) EA 358
  • Fadhili Zahran Mohamed & Another – v- Aliya Ahran Mohamed & Another
    (2017) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Zulfqar Alibhai & Shahina Alibhai trading as Sky Fries v Technical University of Mombasa [2018] KEELC 2792 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2792/eng@2018-07-04

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