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· [2019] KEELC 4711 (KLR)

Tej Sehmi v Mohamed Weli Hassan [2019] KEELC 4711 (KLR)

Environment and Land Court (presumed from subject matter; court name not stated in the judgment)
31 January 2019
SOS. OKONG’O
1,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Nairobi court ruled that declarations like whether a landlord-tenant relationship exists cannot be decided on an interim application and must wait for full trial.

What this practically means

#

Executive summary

#
The plaintiff sued the defendant in September 2017 seeking a permanent injunction against forceful access to House No. 1 on L.R No. 1/756 Ring Road, Kilimani, a declaration that no landlord and tenant relationship existed between them, and an order for the defendant’s eviction. Together with the plaint the plaintiff filed a Notice of Motion dated 5th October 2017 seeking declarations that no tenancy existed, that the Rent Restriction Tribunal lacked jurisdiction to issue orders of 25th September 2017 in Rent Restriction Case No. 1194 of 2017 (under which the defendant had re-entered the property), that the defendant’s re-entry was illegal, and an order for police enforcement. The plaintiff’s case was that the defendant was a tenant at Kshs. 71,500/- per month, fell into arrears, was levied against by auctioneers, vacated voluntarily, and then obtained tribunal orders without disclosing his departure. The defendant admitted the tenancy, denied vacating, contended he was forcefully evicted and that the tribunal properly ordered his reinstatement, arguing that the agreed rent was not the Standard Rent which had to be assessed before the tribunal’s jurisdiction could be challenged. In an unopposed hearing the court held that the declaratory reliefs could not be granted at the interlocutory stage because they were substantive reliefs in the plaint requiring evidence at trial; that the tribunal’s jurisdiction turned on the Standard Rent under sections 2 and 3 of the Rent Restriction Act, which could not be established on the material before the court; and that the legality of the defendant’s re-entry was tied to that jurisdictional question. The application was dismissed with costs to be in the cause.

Key legal issues

#
01

Whether an interlocutory application can be used to obtain a declaration that forms part of the main suit

Holding

No – such a declaration requires a trial and cannot be granted on an interlocutory application.

Reasoning

The court held that where a declaration is a substantive relief in the plaint, granting it on a Notice of Motion would dispose of the suit without a hearing. The existence of a landlord and tenant relationship was denied by the defence and required evidence, so it could only be determined conclusively after hearing the suit.

p. 2
02

Whether the Rent Restriction Tribunal had jurisdiction over the suit property

Holding

The question of the tribunal’s jurisdiction, which depends on the Standard Rent of the premises, could not be determined summarily on the application.

Reasoning

Under section 2 of the Rent Restriction Act the Act does not apply to premises whose Standard Rent exceeds Kshs. 2,500/-. The defendant contended the agreed rent of Kshs. 71,500/- was not the Standard Rent. There was no evidence whether the property existed or was let as at 1st January 1981, so the jurisdictional question required trial.

p. 2

Legal principles established

#
  • A declaration sought in the plaint cannot be granted summarily at the interlocutory stage, as that would amount to judgment without a hearing.
  • The Rent Restriction Act does not apply to dwelling houses with a Standard Rent exceeding Kshs. 2,500/-.
  • Standard Rent is determined by reference to the rent at which the dwelling house was let as at 1st January, 1981, or by the tribunal’s assessment where that cannot be established.

Court orders

#
  1. 1.Dismissal of the plaintiff’s Notice of Motion dated 5th October, 2017
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 2
  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 3 (definition of Standard Rent)
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court; no specific provision invoked in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tej Sehmi v Mohamed Weli Hassan [2019] KEELC 4711 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4711/eng@2019-01-31

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