Pampa Grill Limited & another v North Lake Limited & another [2018] KEELC 3532 (KLR)
The bottom line
#A Kenyan court restored a tenant evicted through secretly obtained, then withdrawn, court orders — landlords must follow due process even when a lease has expired.
What this practically means
#Executive summary
#Key legal issues
#Whether a temporary mandatory (restorative) injunction could be granted for restoration of possession after eviction
The plaintiffs established a prima facie case of unlawful eviction and special circumstances justifying a restorative injunction; the discharge of the temporary eviction orders by withdrawal of the Chief Magistrate's Court suit meant the defendants had no lawful basis to retain possession.
The court distinguished prohibitory from mandatory/restorative injunctions, applying the higher threshold for mandatory injunctions: a very strong case and special circumstances. The temporary eviction orders were conditional on the suit being heard; its withdrawal discharged them, reviving the plaintiffs' right to possession. The uncontroverted allegations of non-service and concealment established a prima facie wrongful eviction.
Whether this court could question the Chief Magistrate's Court orders or whether it lacked jurisdiction
The court held it was not sitting on appeal or review, but nothing precludes it from interrogating the validity of a magistrate's court order; since the temporary orders stood discharged upon withdrawal, they could not shield the defendants.
The defendants argued the ELC lacked jurisdiction over the magistrate's court orders and no supervisory powers under Article 165(6) and (7). The court accepted it was not reviewing those orders but held the orders were temporary and died with the withdrawn suit. The 1st defendant, having withdrawn the suit after executing the eviction, was estopped from insisting the plaintiffs return to the lower court, and no appeal could lie after withdrawal.
Whether post-expiry rent payments created a new lease
By virtue of section 60(2) of the Land Act, 2012, the payments could not create a new lease, but the defendants were still required to follow due process in evicting the plaintiffs.
The court agreed the lease expired on 30th November 2017 and accepted payments thereafter did not create a holding over. However, it held that even trespassers cannot be evicted without due process. The uncontroverted allegations of ex parte orders executed then concealed by withdrawal showed due process was not followed, sustaining the claim regardless of the lease's expiry.
Whether the suit was brought after inordinate delay and whether the 2nd defendant was an innocent third-party occupier
A 30-day delay was not inordinate, and no evidence was placed before the court that the 2nd defendant took possession in good faith without notice of the dispute.
The application was filed 30 days after the eviction; the court was not convinced this was inordinate in the circumstances. On the alleged takeover by a third party, the defendants adduced no evidence of when or on what terms possession passed, nor of the 2nd defendant's good faith, so equity did not allow perpetuating an illegal eviction.
Legal principles established
#- Temporary eviction orders lapse upon withdrawal of the suit in which they were made, and parties revert to their prior positions
- A landlord must obtain an order of a competent court or statutory tribunal to obtain possession unless the tenant consents to give up possession
- Payments on account of rent after expiry of a lease do not create a new lease by virtue of section 60(2) of the Land Act, 2012
- A party who withdraws a suit to prevent the opposing party from defending itself is estopped from requiring that party to challenge the orders in the withdrawn suit
Court orders
#- 1.Prayer 3 of the application granted on condition that the 1st plaintiff deposits Kshs. 10,000,000/- in a joint interest-earning account in the names of the advocates for the parties as security within 14 days
- 2.Upon such deposit, the defendants to vacate and hand over LR No. 330/352, Nairobi to the 1st plaintiff
- 3.Upon obtaining possession, the 1st plaintiff to pay the 1st defendant Kshs. 430,691/- per month as rent pending hearing and determination of the suit
- 4.The plaintiffs to have the costs of the application
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land and occupation of premises
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pampa Grill Limited & another v North Lake Limited & another [2018] KEELC 3532 (KLR)", Case Analysis (2018). Nairobi ELRC (Environment & Land) Case – plaint dated 19th February, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3532/eng@2018-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.