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ELCDismissedMombasa ELC (number not stated in judgment)· [2019] KEELC 3824 (KLR)

Prime Bank Limited v D J Lowe & Company Limited & another [2019] KEELC 3824 (KLR)

Environment and Land Court
5 April 2019
AOA. Omollo
1,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to reinstate a party evicted under a valid court order because no defence had been filed yet in the main suit.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (A. Omollo, J) on a notice of motion dated 25th October 2018 by the 1st defendant. The application sought reinstatement of the defendants into property known as Sub Division Number 1280 Section 1, Mainland North, Nyali, Mombasa; an injunction restraining the plaintiff and Winstar Security Guards Limited from interfering with their occupation; and recall/cancellation of warrants of eviction dated 22nd October 2018. The plaintiff opposed through affidavits of Hasu Silveira, contending the warrants had been fully executed, the eviction was lawfully conducted pursuant to a valid court order through a court bailiff, the plaintiff purchased the property at public auction in March 2011 and holds unchallenged title, and the defendants were indolent having received vacate notices from February 2018. The plaintiff also relied on prior litigation showing the defendants' claims had failed, including suits struck out or dismissed, and argued res judicata. The court noted a prior ruling of 28th February 2019 had set aside the ex parte judgment and given the defendants leave to defend. Holding that the eviction was executed under a valid court order and that the plaintiff is the registered owner, and observing that no draft defence accompanied the earlier application and no statement of defence had been filed, the judge declined to order reinstatement. The application was dismissed with each party bearing its own costs, with liberty to reapply once a defence is on record.

Key legal issues

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01

Whether the defendants were entitled to reinstatement into the suit premises and to recall of the warrants of eviction

Holding

The application was dismissed; the court found the eviction was executed under a valid court order and the plaintiff is the registered title holder

Reasoning

The court noted the eviction was carried out by a court bailiff pursuant to a valid order. Prior suits existed between the parties, in one of which security for costs was ordered and non-payment led to striking out. The plaintiff holds registered title. As no draft defence accompanied the earlier application and no statement of defence had been filed, the court declined reinstatement but allowed the applicant to reapply once a defence is on record.

p. 3

Legal principles established

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  • A party seeking reinstatement to premises evicted under a valid court order should place a defence on record first; reinstatement orders will not issue absent a defence

Court orders

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  1. 1.Declined to grant any of the orders sought in the application dated 25.10.18 at this stage
  2. 2.1st defendant at liberty to reapply once there is a defence on record
  3. 3.Application dismissed with an order for parties to bear their own costs
Jurisdiction invoked
Inherent powers of the Environment and Land Court in an ongoing suit (no specific provision cited)

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, "Prime Bank Limited v D J Lowe & Company Limited & another [2019] KEELC 3824 (KLR)", Case Analysis (2019). Mombasa ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3824/eng@2019-04-05

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