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ELCDismissedNot stated in judgment· [2021] KEELC 1102 (KLR)
Suleiman Bittokk Abdhi t/a Azhar Progressive High School & 40 others v Ali Salim Karama & another [2021] KEELC 1102 (KLR)
Environment and Land Court? Not stated; High Court of Kenya at Mombasa (as delivered by a Judge)
9 November 2021
1,186 words in judgment
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Defendants/Applicants, landlords of Plot No. 9129/I/MN in Kongowea, Mombasa, applied by notice of motion dated 23rd August 2021 under Section 3 of the Distress of Rent Act, Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules for an order of distress for rent and eviction of the Plaintiff/Respondent, proprietor of Azhar Progressive High School, over alleged rent arrears of Kshs. 475,000 under a tenancy agreement dated 20th March 2019 with quarterly rent of Kshs. 35,000. They argued the plaintiff had not paid rent since obtaining interim orders on 18th November 2020 and was using expired interim orders to frustrate recovery through a proclamation notice dated 2nd June 2021. The plaintiff opposed the application, contending he paid Kshs. 160,000 on 10th December 2020 pursuant to the conditional orders, that the landlord had converted a classroom into a traders' storage facility in contempt of the orders of 18th November 2020 (which remain in force), and that a contempt application dated 14th June 2021 was pending, so the applicants did not come to court with clean hands. The court found the orders sought were final in nature and could not be granted at an interim stage. It noted the plaintiff was in occupation and in rent arrears, held the only solution was a full hearing, directed the parties to take an early mention date for directions, dismissed the application and ordered costs to be in the cause.
Key legal issues
#01
Whether distress for rent and eviction orders may issue at an interlocutory stage
Holding
The application was dismissed because the orders sought were final in nature and the matter required a full hearing.
Reasoning
The court acknowledged the plaintiff was in occupation and in rent arrears, but held that the relief sought was final and could not be granted at an interim stage. It directed the parties to take a mention date for directions so the matter could be heard and determined on its merits.
p. 3
Legal principles established
#- Final relief such as distress for rent and eviction cannot be granted on an interlocutory application
Court orders
#- 1.The defendants' application dated 23rd August 2021 is dismissed
- 2.Costs to be in the cause
- 3.Parties to take a mention date at the earliest opportunity for directions on the said petition
- Jurisdiction invoked
- Section 3 of the Distress of Rent Act, Section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman Bittokk Abdhi t/a Azhar Progressive High School & 40 others v Ali Salim Karama & another [2021] KEELC 1102 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1102/eng@2021-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.