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ELCPartially Allowed· [2018] KEELC 4466 (KLR)

Kennedy Mwaniki & 19 others v National Housing Corporation [2018] KEELC 4466 (KLR)

Environment and Land Court
21 February 2018
LML. N. Mbugua
1,607 words in judgment
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The bottom line

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A Meru court struck out tenants' suit over expired leases, ruling that Kenyan courts cannot rewrite contracts and litigation must eventually end.

What this practically means

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Executive summary

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The National Housing Corporation, as defendant, filed a Notice of Motion seeking to strike out the plaintiffs' plaint and dismiss the suit. The plaintiffs were tenants of houses at Tuntu Estate originally owned by the defunct Municipal Council of Meru and later taken over by the defendant. Leases executed in July 2011 for two years expired on 31 July 2013. The suit, filed in June 2012, sought a permanent injunction restraining eviction during the currency of the leases, after the defendant served notices to vacate in May 2012. Interim injunction orders issued on 27 September 2012 preserved the status quo, under which tenants paid rent and were issued receipts. The plaintiffs argued that continued acceptance of rent created fresh implied leases and proposed amending the plaint to plead this, but no amendment was ever made. The defendant argued the plaint disclosed no reasonable cause of action since the lease had expired and nothing remained to enforce. The court held that the plaint was clear and no cause of action survived beyond July 2013, distinguishing Joseph Ndungu Mwaura. It applied National Bank of Kenya v Pipealastic on the court's inability to rewrite contracts, found the delay in prosecuting the suit and seeking amendment inordinate and inexcusable, and held that litigation must come to an end under Article 159 and Section 1A(1) of the Civil Procedure Act. Pursuant to Order 2 rule 15, the plaint filed on 9 June 2012 was struck out and the suit dismissed. Considering the circumstances in which the suit was filed, each party was ordered to bear their own costs. Judgment delivered at Meru on 21 February 2018 by L. N. Mbugua, ELC Judge.

Key legal issues

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01

Whether the plaint disclosed a reasonable cause of action

Holding

No; the suit was filed to enforce leases that terminated on 31.7.2013, so no valid claim remained in the plaint

Reasoning

The plaint's main prayer sought a permanent injunction only during the currency of leases executed in July 2011 for two years. With the lease period expired in July 2013, no cause of action could be discerned from the plaint. The court invoked Order 2 rule 15 to strike out the pleading and dismissed the suit.

p. 3
02

Whether acceptance of rent after expiry created fresh implied leases

Holding

Even if such a claim existed, it was never pleaded; no amendment was made and the inordinate, unexplained delay in pursuing the suit rendered its continuation untenable

Reasoning

Plaintiffs argued continued acceptance of rent created fresh leases, but the status quo of rent payment and receipts was maintained by the court's injunction orders of 27.09.2012. Plaintiffs allowed the suit to sleep for three and a half years, and litigation must come to an end under Article 159 and Section 1A(1) of the Civil Procedure Act.

p. 3

Legal principles established

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  • A court of law cannot rewrite a contract between parties; parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved
  • Under Order 2 rule 15, the court may at any stage strike out a pleading that discloses no reasonable cause of action

Court orders

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  1. 1.The plaint filed on 9.6.2012 is struck out
  2. 2.The suit herein is dismissed
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 1A(1)
  • Civil Procedure RulesOrder 2 rule 15

Cases cited (11)

  • J.A.O vs Home Park Caterers Ltd and 2 others
    (2004) eKLR
  • D.T. Dobie & Co (K) Ltd vs Muchina & another
    (1982) KLR
  • Jane Wairimu Turanta vs Githae John Vickery & Another
    (2013) eKLR
  • Francis Kamande vs Vanguard Electrical Services Ltd
    (1966)
  • John Mulwa Kang'aatu vs Pan African Co. Ltd
    (2015)
  • William T. Abira & 12 others vs Kenya Civil Aviation Authority
    (2016) eKLR
  • Joseph Ndungu Mwaura vs James Githiga Mwaura
    (2004) eKLR
  • Said Hamd Shamisi vs Diamond Trust of Kenya Limited
    (2010) eKLR
  • D.T Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & Another
    (1980) eKLR
  • Kutima Investiments Limited vs Muthoni Kihara & Another
    (2015) eKLR
  • National Bank of Kenya Ltd vs Pipealastic Samkolit (K) Ltd
    (2002) EA 503
Jurisdiction invoked
Order 2 rule 15 of the Civil Procedure Rules; Article 159 of the Constitution; Section 1A(1) of the Civil Procedure Act

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, "Kennedy Mwaniki & 19 others v National Housing Corporation [2018] KEELC 4466 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4466/eng@2018-02-21

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