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ELCDismissedNot stated in the judgment· [2021] KEELC 1902 (KLR)

Justus Munyinyi Macharia t/a Gusii Propriety Club v Dakianga Distributors Limited [2021] KEELC 1902 (KLR)

Environment and Land Court
29 September 2021
JOJ.M ONYANGO
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can sue for damages after unlawful business eviction instead of returning to the rent tribunal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J.M Onyango, J) determines a preliminary objection raised orally by the Defendant on 24 May 2021, arguing that the Plaintiff's suit for damages arising from his mother's eviction violated section 91 of the Civil Procedure Act, which requires restitution applications to be made in the court of first instance after a decree is varied or reversed. The background: the Plaintiff's mother, a protected tenant, was evicted in 2006 after the Defendant misled the Chief Magistrate's Court into adopting a Business Premises Rent Tribunal decision despite a pending appeal. The High Court set aside the Tribunal's ruling, held the eviction unlawful, and allowed the Plaintiff to pursue damages, prompting the present suit filed in 2012 for special damages of Kshs 9,929,767 and aggravated damages. The court held that section 91 did not apply because, at the time of the appeal, the Tribunal's decision had not been adopted as a decree, so the court of first instance would be the BPRT, which lacks jurisdiction over compensation once the landlord-tenant relationship has ceased. The word 'could' in section 91(2) was held significant: the relief sought could not be obtained by application under section 91(1). The Preliminary Objection was therefore dismissed with costs to the Plaintiff, leaving the substantive damages claim to proceed.

Key legal issues

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01

Whether the Plaintiff's suit contravenes section 91 of the Civil Procedure Act requiring restitution applications in the court of first instance

Holding

The Preliminary Objection fails; section 91 is inapplicable because the BPRT, as the court of first instance, lacks jurisdiction to award compensation where the tenancy has ended

Reasoning

The appeal had reversed the Tribunal's decision before it was adopted by the Chief Magistrate's Court, so the court of first instance would be the BPRT, not the Magistrate's Court. Section 91(1) presupposes the court of first instance has jurisdiction over restitution, but the Tribunal has none where the landlord/tenant relationship has ceased. Section 91(2) bars a suit only where relief could be obtained by application; here it could not.

p. 3

Legal principles established

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  • Section 91(2) of the Civil Procedure Act bars a suit only where the restitution sought could be obtained by application under section 91(1); where the court of first instance lacks jurisdiction over such relief, a substantive suit is competent
  • A claim for compensation for unlawful eviction from business premises falls within the jurisdiction of the High Court/ELC where the landlord-tenant relationship has ceased

Court orders

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  1. 1.The Preliminary Objection is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 91(1) and (2)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301Section 4(2)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301Section 7(1)(9)
Jurisdiction invoked
Inherent jurisdiction of the court over claims for damages for unlawful eviction; suit filed pursuant to the High Court's direction in the allowed appeal

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, "Justus Munyinyi Macharia t/a Gusii Propriety Club v Dakianga Distributors Limited [2021] KEELC 1902 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1902/eng@2021-09-29

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