Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2020] KEELC 3169 (KLR)

Abdulazis Ashur v Stephen Mbugua Gatura [2020] KEELC 3169 (KLR)

Environment and Land Court
17 February 2020
CYC.K. Yano
1,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Mombasa court struck out a tenant's defence because rent arrears were admitted and the tenancy termination was never challenged, granting the landlord immediate possession.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 26th June 2019 by the plaintiff seeking to strike out the defendant's statement of defence under Order 2 Rule 15 of the Civil Procedure Rules and to have judgment entered as prayed in the plaint. The plaintiff alleged the defendant was a perpetual rent defaulter on premises on Plot No. MSA/BLOCK XVI/870, accruing arrears of Kshs.182,000/= for April 2018 to April 2019, and that a notice of termination of the controlled tenancy under Cap 301 took effect on 1st May 2019 without any reference being filed at the Business Premises Rent Tribunal. The claim sought vacant possession, rent arrears and mesne profits at Kshs.14,000/= from 1st May 2019. The defendant opposed, asserting triable issues: that a tribunal matter existed, that distrained goods were new merchandise worth Kshs.377,380/= exceeding the arrears, and that no inventory of the distraint was provided. Justice C.K. Yano applied the Court of Appeal's guidance that striking out is discretionary and should be exercised sparingly in the clearest of cases, but found the defence frivolous: the arrears were effectively admitted, the termination notice was unchallenged, and the defendant's allegation that the plaintiff owed him was unsupported by any counter-claim. Relying also on Delphis Bank v Caneland, the court held there was no substantial question to try regarding possession, arrears or mesne profits. The defence was struck out, judgment was entered for the plaintiff in terms of prayers (a) to (e) of the plaint, and the plaintiff was awarded costs of the application.

Key legal issues

#
01

Whether the defence should be struck out as frivolous and vexatious

Holding

The defence was struck out as frivolous because rent arrears were admitted, no reference was filed against the termination notice, and no counter-claim supported the allegation that the plaintiff owed the defendant.

Reasoning

The court found the defendant did not deny outstanding rent arrears and had not challenged the notice terminating the controlled tenancy under Cap 301. Continued occupation was therefore predicated on a terminated tenancy. The defendant alleged the plaintiff owed him following a distraint of goods exceeding the arrears, but filed no counter-claim. Applying the principle that striking out is for the clearest of cases, the court held there was no substantial question to try on possession, arrears or mesne profits.

p. 2

Legal principles established

#
  • The power to strike out pleadings is discretionary and should be exercised sparingly and only in the clearest of cases.
  • A defence that admits rent arrears and does not challenge a terminated controlled tenancy discloses no triable issue and may be struck out.

Court orders

#
  1. 1.The defendant's statement of defence is struck out
  2. 2.Judgment entered for the plaintiff in terms of prayers (a), (b), (c), (d) and (e) of the plaint
  3. 3.Plaintiff awarded costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 Rule 15; Order 51 Rule 1
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Notice of termination of controlled tenancy

Cases cited (3)

  • Mohamed Mohamed Hatimy v Lameck Oluoch t/a Lamathe Hygienic Foods
    (2019) eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    (2017) eKLR
  • Delphis Bank Limited v Caneland Limited
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdulazis Ashur v Stephen Mbugua Gatura [2020] KEELC 3169 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3169/eng@2020-02-17

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