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ELCAllowedNot stated in judgment· [2020] KEELC 3880 (KLR)

Ideal Locations Ltd v Deacons (E.A) Ltd [2020] KEELC 3880 (KLR)

Environment and Land Court
28 January 2020
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The defendant, a tenant of premises on LR Nos. 14407 and 16088 leased from the plaintiff at a monthly rent of Kshs. 294,000/= from April 2017, fell into rent and service charge arrears said to be Kshs. 2,056,394/= by October 2018. Distress realised Kshs. 1,205,000/=. The plaintiff then learnt the defendant was under administration but continued occupying without surrendering the lease, and sued for distress, forfeiture and vacant possession, later applying for summary judgment. The defendant filed a preliminary objection and a motion to strike out the plaint. Both were dismissed for non-attendance on 18 September 2019 when its counsel, Mr. Ngonze, neither filed submissions nor appeared. The defendant applied for reinstatement, citing counsel's illness and a mistaken belief that the matter was before Yano J. The court found the illness claim unconvincing - counsel exhibited only a photograph of common over-the-counter medication and admitted working mornings - and noted the directions fixing the matter before this court were given in his presence. Nevertheless, taking the right to be heard seriously, the court allowed reinstatement in its own discretion, conditional on the defendant paying throwaway costs of Kshs. 15,000/= and depositing in court accumulated rent of Kshs. 1,409,978.10/= for September 2019 to January 2020 within 14 days, failing which the dismissal stands; upon payment, the preliminary objection and motion are reinstated for hearing with extension of time to file submissions on the summary judgment application.

Key legal issues

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01

Whether counsel's illness and mistaken belief about the hearing court justified reinstatement

Holding

The court rejected the explanations, finding the illness claim unsupported and the confusion about the hearing court untenable since directions had been given in counsel's presence.

Reasoning

Counsel exhibited only a photograph of over-the-counter cough medication without dates or his name, and hospital tests taken later. He admitted working mornings and attending other courts, so was not incapacitated. Directions by Yano J had specified the matter would be before this court, in counsel's presence. The court concluded counsel was covering up his own tardiness and found the reasons unconvincing.

p. 2
02

Whether reinstatement could nonetheless be granted as a condition-laden exercise of discretion

Holding

Reinstatement was allowed in the court's own discretion to preserve the defendant's right to be heard, conditional on payment of throwaway costs and a rent deposit covering the pendency of the application.

Reasoning

Though unpersuaded by the explanation, the court declined to shut the defendant out of the seat of justice, weighing the right to be heard against the plaintiff's prejudice. It therefore imposed conditions: throwaway costs of Kshs. 15,000/= and a court deposit of accumulated rent of Kshs. 1,409,978.10/= for September 2019 to January 2020, both payable within 14 days, failing which the dismissal stands.

p. 2

Legal principles established

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  • A party's dismissal for non-attendance may be reinstated in the court's discretion to preserve the right to be heard, even where the explanation offered is not believed, subject to appropriate conditions.

Court orders

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  1. 1.The application to reinstate was allowed in the court's own discretion, not on the reasons given by counsel
  2. 2.The defendant to pay throwaway costs to the plaintiff assessed at Kshs. 15,000/=
  3. 3.The defendant to deposit in court rent from September 2019 to January 2020, totalling Kshs. 1,409,978.10/=
  4. 4.The throwaway costs and rent deposit to be settled within 14 days, failing which the order dismissing the preliminary objection and the motion of 25 March 2019 will stand
  5. 5.If the monies are paid within 14 days, the application and preliminary objection to be reinstated for hearing and time extended to Mr. Ngonze to file submissions on the plaintiff's application of 12 March 2019
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; inherent discretion to reinstate an application dismissed for non-attendance/non-prosecution

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, "Ideal Locations Ltd v Deacons (E.A) Ltd [2020] KEELC 3880 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3880/eng@2020-01-28

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