Mackwoods Limited v Kellico Limited [2021] KEELC 2337 (KLR)
The bottom line
#The High Court struck out a landlord-tenant suit because an identical dispute was already pending before the Rent Tribunal, awarding costs to the landlord.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is sub judice given live BPRT proceedings
The suit is sub judice; same parties and subject matter are before Tribunal Case No. 981 of 2020
The court found it undisputed that live Tribunal proceedings existed between the same parties and that the contempt alleged was of orders issued by that Tribunal. Applying section 6 of the Civil Procedure Act and Thiba Min. Hydro, the substance, not form, of the suit triggered the sub judice bar.
Whether the High Court has jurisdiction over the controlled tenancy dispute
The court lacks jurisdiction under section 12 of Cap 301 as the tenancy is a controlled tenancy
The preliminary objection established that there was no executed lease between the parties and the dispute fell within the BPRT's statutory jurisdiction under section 12 of Cap 301, leaving the High Court without jurisdiction to entertain the matter.
Whether contempt of the Tribunal's orders was established
No contempt established
The orders were extracted on 14th December 2020 while the goods were allegedly removed on 12th December 2020, so the directors were never served. The deponent's claim of verbal notice was uncorroborated, and knowledge plus willful disobedience must be proven before committal.
Legal principles established
#- A preliminary objection on sub judice and statutory jurisdiction succeeds where live proceedings on the same subject matter are pending between the same parties before the Business Premises Rent Tribunal.
- Contempt requires proof of knowledge of the order and willful disobedience.
Court orders
#- 1.The preliminary objection dated 5th March 2021 is upheld.
- 2.The notice of motion dated 25th January 2021 is dismissed with costs to the defendant.
- 3.The suit is found premature and is struck out with costs to the defendant/respondent.
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63(e) Civil Procedure Act; Section 5 Judicature Act; Order 40 Rules 1, 2, 3 and 4 Civil Procedure Rules; objection founded on section 12 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mackwoods Limited v Kellico Limited [2021] KEELC 2337 (KLR)", Case Analysis (2021). Notice of Motion dated 25th January 2021 (suit on LR No. 209/14097, Mombasa Road). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2337/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.