Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of Motion dated 20th September 2018)· [2019] KEELC 1713 (KLR)

Ali Abdalla Sheikh Omar & another v Haji Shariff [2019] KEELC 1713 (KLR)

Environment and Land Court
17 September 2019
CYC.K. Yano
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed tenants' suit over eviction from a Changamwe plot, ruling that controlled tenancy disputes belong to the Rent Tribunal first.

What this practically means

#

Executive summary

#
The Plaintiffs/Applicants moved the Environment and Land Court at Mombasa by Notice of Motion dated 20th September 2018 seeking interim and mandatory injunctive relief arising from their eviction from, and distress of goods at, PLOT NO. 53/3/VI/MN Changamwe on 16th July 2018. They sought an inventory of removed goods, restraint on disposal of the goods or letting of the premises, and restoration into the premises, contending that the distress and dispossession were unlawful and outside the terms of a Business Premises Rent Tribunal order, and that their tenancies were controlled under Cap 301. The Defendant opposed, averring substantial rent arrears, prior proceedings (BPRT Nos. 37 & 38 of 2017 and Mombasa RMCC No. 2064 of 2017, the latter dismissed), non-compliance with a Tribunal order to pay undisputed rent, and that the premises had already been leased to third parties. He filed a preliminary objection on jurisdiction, res judicata and defectiveness. The court applied the higher Locabail threshold for interlocutory mandatory injunctions and found no prima facie case or irreparable harm. On the preliminary objection, it held that controlled tenancy disputes lie originally before the Tribunal, with appeals to the ELC under Section 15(1) of Cap 301, so the court lacked original jurisdiction; the suit was also barred by res judicata under Section 7 of the Civil Procedure Act. The preliminary objection was upheld, the motion dismissed, and the suit dismissed in limine, with costs to the Defendant.

Key legal issues

#
01

Interlocutory mandatory injunction

Holding

Not granted; the higher Locabail standard applies and was not met

Reasoning

The court distinguished the standard for mandatory interlocutory injunctions from Giella v Cassman Brown, applying the higher threshold in Locabail: special circumstances, clear cases, and a high sense of assurance. The Plaintiffs established neither a prima facie case with probability of success nor irreparable harm not compensable in damages.

p. 2
02

Jurisdiction over controlled tenancies

Holding

The ELC has no original jurisdiction; it sits only on appeal under Section 15(1) of Cap 301

Reasoning

Since the tenancies were controlled, the Tribunal has original jurisdiction, including power under Section 12(1)(e) to order recovery of possession and payment of arrears. The Plaintiffs should have appealed any Tribunal determination to the ELC rather than filing a fresh suit.

p. 3
03

Res judicata

Holding

The suit is barred by Section 7 of the Civil Procedure Act

Reasoning

The same parties had litigated similar issues in BPRT Nos. 37 & 38 of 2017 and Mombasa RMCC No. 2064 of 2017, both of which were determined. The present suit is not an appeal from those proceedings, and the issues now raised could have been raised there.

p. 3

Legal principles established

#
  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases
  • The Business Premises Rent Tribunal has original jurisdiction over controlled tenancy disputes, and an aggrieved party must appeal to the Environment and Land Court under Section 15(1) of Cap 301
  • A suit or issue already determined in a former suit between the same parties after a hearing is barred by res judicata under Section 7 of the Civil Procedure Act

Court orders

#
  1. 1.The Preliminary Objection raised by the Defendant is upheld
  2. 2.The Notice of Motion dated 20th September 2018 is dismissed with costs to the Defendant
  3. 3.The suit is dismissed in limine with costs to the Defendant

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 3A, 63(e), 7
  • Civil Procedure RulesOrder 40 Rule 7
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Sections 2, 4, 12(1)(e), 15, 15(1)

Cases cited (2)

  • Giella –v- Cassman Brown
  • Locabail International Finance Ltd –v- Agro Export & Another
    (1986)1 ALL 901
Jurisdiction invoked
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 and Civil Procedure Act (court found it lacks original jurisdiction over controlled tenancies; appellate jurisdiction under Section 15(1) of Cap 301)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ali Abdalla Sheikh Omar & another v Haji Shariff [2019] KEELC 1713 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 20th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1713/eng@2019-09-17

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