Jane Nguyai v Fatma Mohamed Ahmed [2020] KEELC 1435 (KLR)
The bottom line
#A Mombasa court set aside an eviction order obtained through a second tribunal suit filed behind a tenant's back while her earlier challenge was still pending.
What this practically means
#Executive summary
#Key legal issues
#Filing a second suit to obtain ex parte eviction orders while an earlier reference on the same termination notice was pending
The second suit was improperly filed to gain an unfair advantage; the ex parte eviction orders were set aside and the suits consolidated
The applicant had filed BPRT Case No. 73 of 2020 challenging the termination notice, and that reference was pending. The respondent nonetheless filed BPRT Case No. 123 of 2020 asserting the applicant had failed to file a reference, and obtained ex parte eviction orders. Neither the respondent nor Shariffa, respondents in the first case, explained the second suit. The court found the later suit was filed to steal a march on the applicant.
Whether an application should be dismissed because its supporting affidavit was sworn by the applicant's advocate
No; the technical objection does not warrant dismissal where the affidavit deposes to urgent, non-contentious matters of record
The supporting affidavit was sworn by Shithakha Tom Ambwere Advocate, on record for the applicant, who explained that his client could not travel from Nairobi to Mombasa owing to Covid-19 cessation of movement orders. The deponents' matters related to the two tribunal cases and were not contentious. The court declined to dismiss the application on that technical basis alone.
Legal principles established
#- A litigant should not file a second suit before the Tribunal to obtain ex parte orders while an earlier suit on the same subject matter is pending
- A supporting affidavit sworn by an advocate for urgent reasons, deposing to non-contentious matters of record, is not a basis for dismissing an application
Court orders
#- 1.The order issued on 7 May 2020 by the Business Premises Rent Tribunal in Tribunal Case No. 123 of 2020, Fatma Mohamed Ahmed vs Jane Nguyai, is set aside
- 2.Consolidation of Tribunal Case No. 123 of 2020, Fatma Mohamed Ahmed vs Jane Nguyai, with Mombasa Tribunal Case No. 73 of 2020, Jane Nguyai vs Sharifa Said Abdulrehman and Fatma Mohamed Ahmed
- 3.Pending the hearing and determination of the proceedings before the tribunal, the status quo prevailing at the time of issue of the termination notice be maintained
- 4.The applicant will have the costs of this application
- 5.The applicant may consider withdrawing the pending appeal, the court considering it spent
- On appeal from
- Business Premises Rent Tribunal
- BPRT Case No. 123 of 2020
- Jurisdiction invoked
- Appellate jurisdiction over decisions of the Business Premises Rent Tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Nguyai v Fatma Mohamed Ahmed [2020] KEELC 1435 (KLR)", Case Analysis (2020). Application dated 12 May 2020 in appeal from BPRT Case No. 123 of 2020 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1435/eng@2020-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.