Nova Holdings Ltd v Nakumatt Holdings Ltd [2019] KEELC 1798 (KLR)
The bottom line
#A Kenyan court confirmed that a landlord could enforce a rent decree against Nakumatt while it was under administration, because approval had already been granted.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to execute against a company under administration was required
No further leave was required; the ruling of 30th May 2018 in the same suit had already granted approval to continue the suit and to recover possession and outstanding rents
The court held that the earlier ruling of 30th May 2018, allowing the plaintiff's application of 24th January 2018, had already given approval to continue the suit and recover rents due up to surrender of vacant possession. That ruling had not been appealed, stayed, or reviewed. The administration order itself expressly stated it was not a bar to future applications even by the same landlords. Submitting anew on the import of the administration orders therefore did not assist the defendant, and the present application sought no review.
Whether the decree should be corrected to reflect Kshs.107,000,000.00 as at 1st August 2018
The plaintiff need not have the decree corrected; she may extract a decree stating the amount due up to 30th July 2018 less the Kshs.18,216,000 already received, and the defendant may dispute the figure
The parties had a lease specifying the rents payable, possession was obtained on 1st August 2018 (a fact not denied), and the court had already given permission to collect rents due up to surrender of vacant possession. The defendant had not pleaded what the pre- and post-administration arrears amounted to. Taking of accounts did not arise as the defendant's application for that had been abandoned. The plaintiff could therefore extract and serve a decree for the balance.
Legal principles established
#- A decree must agree with the judgment (Order 21 rule 7(1), Civil Procedure Act, as submitted)
- Where leave/approval to continue a suit has already been granted in the same proceedings, the plaintiff need not apply again for leave to execute
- Administration is an interim or temporary regime and an administration order is not a bar to future applications even by the same landlords
Court orders
#- 1.The plaintiff does not require leave of the court to execute or extract the decree to comply with the terms of the judgment
- 2.The plaintiff may execute for rents due as stated in prayer 3 of the motion less the sum of Kshs.18,216,000 acknowledged as already paid
- 3.Costs of the motion dated 2nd November 2018 awarded to the defendant
- Jurisdiction invoked
- Original civil jurisdiction; decree of the court dated 18th July 2018 following ruling of 30th May 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nova Holdings Ltd v Nakumatt Holdings Ltd [2019] KEELC 1798 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd November 2018 (from the suit; decree issued 18th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1798/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.