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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 7/6/2017 in the plaint dated 7/6/2017)· [2018] KEELC 3925 (KLR)

Ismail Rahimtulla Trustees Registered & another v Joint Administrators - Spencon Kenya Limited (Under Administration) & 2 others [2018] KEELC 3925 (KLR)

Environment and Land Court
29 March 2018
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a company to vacate offices it occupied after its lease expired, confirming that staying on without consent makes you a trespasser who can be evicted quickly.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of LR No. 209/11458 (Rahimtulla Tower), leased office space on the seventeenth floor to Spencon Kenya Limited by a lease dated 27/7/2011, and granted Spencon Holdings Limited a car parking licence dated 2/6/2015. Both the lease and licence expired by effluxion of time on 31/10/2016. Alleging unlawful continued occupation and rent and licence fee arrears of Kshs 15,471,512.06, the plaintiffs sued seeking vacant possession, special damages, mesne profits and interest, and brought a Notice of Motion dated 7/6/2017 seeking mandatory injunctive orders compelling the 1st defendant to vacate the office space and parking bays, an alternative demolition/restoration order, and an order for the Deputy Registrar to execute a surrender of lease. Service was effected by newspaper publication pursuant to leave granted by Gitumbi J. The 1st and 3rd defendants did not enter appearance; the 2nd defendant appeared but filed no defence, response or submissions, leaving the application unopposed. Applying the Locabail and Kenya Breweries v Okeyo principles, Eboso J held that the expired lease, the absence of any subsisting tenancy (making the 1st defendant a trespasser), the proved arrears and the uncontroverted evidence constituted a clear case justifying the rare interlocutory mandatory injunction. However, the injunction was confined to the 17th floor office space because the parking licence was with Spencon Holdings Limited, a non-party whose relationship with the 1st defendant was unclear. The surrender-of-lease prayer failed as there was no subsisting lease, and the alternative prayer was not granted since the main prayer had succeeded. The application was allowed in terms of prayer 2, with 15 days to vacate and restore, liberty to evict in default, police assistance, and costs to the plaintiffs; the remainder of the claim proceeds to hearing/formal proof.

Key legal issues

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01

Whether the criteria for an interlocutory mandatory injunction were met

Holding

Yes, in respect of the 17th floor office space only; the lease had expired, the 1st defendant was a trespasser, arrears of Kshs 15,471,512.06 were shown, and the application was unopposed, making it a clear case

Reasoning

The lease to Spencon Kenya Limited expired by effluxion of time on 31/10/2016 with no evidence of any subsisting tenancy or lawful occupation. Evidence showed rent and mesne profits arrears of Kshs 15,471,512.06. None of the defendants filed a defence or opposed the application, leaving the plaintiffs' evidence uncontroverted. These circumstances amounted to a clear case warranting the rare exercise of jurisdiction to grant a mandatory injunction at the interlocutory stage.

p. 2
02

Whether the parking bays could be covered by the mandatory injunction

Holding

No; the parking licence was with Spencon Holdings Limited, a non-party, and its relationship with the 1st defendant was unclear

Reasoning

The car parking licence dated 2/6/2015 was entered into between the plaintiffs and Spencon Holdings Limited, not Spencon Kenya Limited (the 1st defendant). Spencon Holdings Limited was not joined as a defendant, and the contractual relationship between it and the 1st defendant was unclear on the material before the court. The injunction could therefore not issue in respect of the parking bays.

p. 2
03

Whether an order for surrender of lease could issue

Holding

No; the lease had expired by effluxion of time and there was no subsisting lease to surrender

Reasoning

Surrender of lease is a consensual reconveyance of the demised premises available only where a lease subsists. The lease expired on 31/10/2016, and the court had already held the 1st defendant's occupation to be illegal trespass. There was accordingly no lease to surrender or reconvey, and the prayer could not lie.

p. 3
04

Whether the alternative demolition/restoration prayer should be granted

Holding

No; being framed as an alternative to the main prayer which had been granted, the court declined to grant it

Reasoning

The court observed that the prayer, by its wording, should more properly have been framed as an additional rather than an alternative prayer. However, since it was framed as an alternative and the main prayer had been granted, the court refrained from granting it. The restoration obligation was instead built into the main order requiring the 1st defendant to restore the premises within 15 days.

p. 3

Legal principles established

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  • A mandatory injunction at the interlocutory stage is granted only in a clear case and with caution, particularly where it would amount to granting a major part of the relief claimed in the action
  • A mandatory injunction on an interlocutory application requires special circumstances, clear cases and a higher standard of assurance than for a prohibitory injunction
  • Where the lease has expired by effluxion of time and no other lawful relationship subsists, continued occupation constitutes trespass
  • Surrender of lease is available only where there is a subsisting lease

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 7/6/2017 allowed in terms of prayer 2 (mandatory injunction compelling the 1st defendant to deliver vacant possession of the 17th floor office space)
  2. 2.The 1st defendant to vacate the suit premises within 15 days and restore the premises to the state in which they were at commencement of the lease, within the same 15 days
  3. 3.In default, the plaintiffs at liberty to take possession through eviction and to restore the premises to the state in which they were at commencement of the lease
  4. 4.The Police Commander in charge of Nairobi City County to ensure law and order during the taking of possession
  5. 5.Plaintiffs to have costs of the application
  6. 6.The rest of the plaintiffs' claim to be set down for hearing/formal proof

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 rule 1

Cases cited (2)

  • Locabail International Finance Ltd v Agroexport
    (1986) 1 All ER 901
  • Kenya Breweries Ltd & Another v Washington O Okeyo
    (2002) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a lease/tenancy dispute relating to land and a building (interlocutory Notice of Motion dated 7/6/2017 in the suit)

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, "Ismail Rahimtulla Trustees Registered & another v Joint Administrators - Spencon Kenya Limited (Under Administration) & 2 others [2018] KEELC 3925 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 7/6/2017 in the plaint dated 7/6/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3925/eng@2018-03-29

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