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ELCAllowedNotice of motion dated 20th July 2020 (proceedings related to BPRT No. 176 of 2020)· [2020] KEELC 155 (KLR)

Bruce Mutie Mutuku t/a Diani Business Travel & Diani Business Center v Ashburton Grove Limited [2020] KEELC 155 (KLR)

Environment and Land Court
17 December 2020
CYC.K. Yano
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A landlord cannot seize a tenant's property while the Rent Tribunal is unable to sit, an inflated rent arrears figure, or claim the protections the tribunal has already granted.

What this practically means

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Executive summary

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The applicant, a tenant of premises on Plot Kwale/Diani Beach/Block 1588, Diani, applied by notice of motion dated 20th July 2020 for an injunction restraining the respondent landlord from levying distress for rent or interfering with his occupation, tenancy, and use of electricity and water pending hearing of Business Rent Tribunal Case No. 176 of 2020, in which four other matters between the parties were also pending. The applicant contended that the respondent issued a proclamation of distress dated 10th July 2020 despite existing tribunal restraining orders, and that the tribunal could not sit because orders in Nairobi ELRC Petitions Nos. 99 and 100 of 2020 restrained its new Chairman and members. The respondent, through Michael John Bell's affidavit, opposed the application, asserting rent arrears exceeding Kshs. 2,547,200 plus an outstanding power bill, and alleging the applicant used multiple court cases to defeat his rental obligations. Applying the settled principles in Giella v Cassman Brown and the prima facie case definition in Mrao Ltd, and the flexible approach in Suleiman v Amboseli Resort Ltd, the court found the tribunal orders existed and were not denied, took judicial notice that the tribunal's appointments had been nullified, and held it unfair for the respondent to exploit the vacuum. The status quo was to be maintained and the balance of convenience favoured the applicant. The motion was allowed in terms of prayer 3, with each party bearing their own costs.

Key legal issues

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01

Whether the applicant met the threshold for an interlocutory injunction

Holding

The application was allowed; the status quo should be maintained until the BPRT is constituted, as the respondent could not take advantage of the tribunal's vacuum, and the balance of convenience favours the applicant in occupation enjoying tribunal orders.

Reasoning

The court applied the settled Giella principles, as restated in Mrao Ltd on prima facie case and Suleiman v Amboseli Resort on the lower risk of injustice. There was no dispute that suits were pending before the BPRT and that restraining orders existed which the respondent did not deny. Judicial notice was taken that the tribunal's chairman and members' appointments were nullified, so the tribunal could not sit. It would be unfair for the respondent to exploit that vacuum; the status quo must be preserved and the balance of convenience tilted towards the applicant.

p. 2

Legal principles established

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  • A prima facie case is one in which on the material presented the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation.
  • The court is not necessarily bound by the three Giella principles; it may adopt a further test of opting for the lower rather than the higher risk of injustice.

Court orders

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  1. 1.The notice of motion dated 20th July 2020 is allowed in terms of prayer 3 thereof (injunction restraining the respondent from levying distress for rent or interfering with the applicant's occupation/tenancy and use of electricity and water at PLOT KWALE/DIANI BEACH/BLOCK 1588, DIANI pending hearing and determination of BPRT No. 176 of 2020)
  2. 2.Parties to bear their own costs

Authorities

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Cases cited (4)

  • Mrao Ltd v First American Bank of Kenya
    (2003) KLR 125
  • Suleiman v Amboseli Resort Ltd
    (2004) KLR 589
  • Giella v Cassman Brown
  • Films Rover International
    (1986) 3 ALL ER 772
Jurisdiction invoked
Original jurisdiction over landlord and tenant dispute (Business Rent Tribunal matter; tribunal not constituted due to ELRC orders)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bruce Mutie Mutuku t/a Diani Business Travel & Diani Business Center v Ashburton Grove Limited [2020] KEELC 155 (KLR)", Case Analysis (2020). Notice of motion dated 20th July 2020 (proceedings related to BPRT No. 176 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/155/eng@2020-12-17

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