Abdarahman Aden v Nyali Intergrated Academy Ltd [2019] KEELC 241 (KLR)
The bottom line
#A Kenyan court struck out a tenant's defence and ordered vacant possession because a valid six months' termination notice left nothing worth trying.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence to the claim for vacant possession raised triable issues
The defence was frivolous; the tenancy had been duly terminated by notice served by registered post in accordance with the lease, and judgment in terms of the plaint was entered
The court reviewed the lease dated 10 June 2014 for a ten-year term. Clause 10 allowed either party to terminate on six months' notice or rent in lieu. The notice dated 18 January 2018 was sent by registered post to the address stated in the lease. Whether the tenancy was controlled under Cap 301 or not, the notice was effective: if outside the Act, the six months' notice sufficed; if within the Act, the defendant never filed a reference as required by Section 6. Improvements to the premises could not override the covenant to yield up possession.
Applicable principles for striking out pleadings
The power to strike out is discretionary, exercised sparingly and only in the clearest of cases, without embarking on the merits; the test is whether a bona fide triable issue exists
The court adopted the settled principles in D.T. Dobie & Company Kenya Ltd v Muchina and Mohamed Hatimy v Lameck Oluoch, balancing a party's right to a full trial against the opposing party's right not to be burdened by a non-starter suit. It then applied the Delphis Bank v Caneland principle that where a defence is a sham and unsustainable, a trial would only inflate costs and delay justice.
Whether improvements made by the tenant to the premises could resist termination
No - the lease allowed alterations at the tenant's cost but required the tenant to yield up the premises with all fixtures and fittings, including those installed by the tenant, upon expiry or sooner determination
The defendant argued it had spent substantial sums building classrooms and facilities with the plaintiff's consent. The court found this could not constitute a triable issue because the lease expressly permitted alterations at the tenant's own cost and, under Clause 17, required delivery up of the premises with fixtures and fittings installed by the tenant upon expiry or sooner determination of the lease.
Legal principles established
#- The overriding principle in an application to strike out a pleading is whether it raises any triable issue; where the defence is frivolous and raises no triable issue, it will be struck out and judgment entered
- Where a tenancy falls outside Cap 301, a six months' notice conforming to the lease suffices to terminate the tenancy, and it is immaterial that the notice was framed as if issued under the Act if no prejudice is suffered
- Rent paid and received after a valid notice of termination may be received as mesne profits; the landlord's intention is paramount and mere receipt of rent does not necessarily create a new tenancy
Court orders
#- 1.The Notice of Motion dated 26th November 2018 by the plaintiff is allowed
- 2.The defendant's defence is struck out
- 3.Judgment is entered in terms of the plaint
- 4.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over the landlord-tenant/land dispute; notice of motion under the Civil Procedure Rules seeking striking out of defence and judgment in terms of the plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdarahman Aden v Nyali Intergrated Academy Ltd [2019] KEELC 241 (KLR)", Case Analysis (2019). Not stated in judgment (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/241/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.