Mi-Tech Limited v Catherine Wambui Felistus [2021] KEELC 3120 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it, not the Rent Tribunal, handles disputes over written ten-year leases, and set aside orders obtained without proper service.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC or the Business Premises and Rent Tribunal has jurisdiction over the dispute
The ELC has jurisdiction; the tenancy is not a controlled tenancy as it is written, for 10 years, without a termination clause within five years
The Tribunal's jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is confined to controlled tenancies. Section 2(1) defines a controlled tenancy as one not reduced to writing, or if written, for a period not exceeding five years or with a termination provision within five years. The lease here was in writing for ten years without such a clause, so the Tribunal lacked jurisdiction and the ELC, seized under Article 162(2)(b) and Section 13 of the ELC Act, could entertain disputes over rents and occupation of land.
Whether the ex parte orders of 15th October 2020 should be set aside
Yes; no inordinate delay and the process server's affidavit did not clearly show the hearing notice was served, so the Court exercised discretion in the Defendant's favour
Order 51 Rule 15 empowers the Court to set aside ex parte orders. The Court noted uncertainty whether the hearing notice accompanied the Notice of Motion served, noted letters of protest on service, and found only 20 days elapsed between service of the orders and the application, which was not inordinate delay. The Plaintiff was also in rent arrears and sitting on injunction orders without paying, causing no demonstrated prejudice if the orders were set aside.
The propriety of affidavits sworn by the Defendant's Advocate on disputed facts
The Court considered the affidavits but cautioned the Advocate against deponing to disputed factual matters
Under Rule 8 of the Advocates (Practice) Rules, 1966, an advocate who may be required as a witness should not appear. The advocate swore to both legal positions and disputed facts. Following the Magnolia principle, the Court avoided the affidavit problem by considering the application on its merits but formally cautioned counsel.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction must down its tools
- A written lease for ten years without a termination provision within five years is not a controlled tenancy, so the Business Premises Rent Tribunal has no jurisdiction
- An application to set aside ex parte orders must be brought without inordinate delay
- Advocates should not swear affidavits deposing to disputed facts
Court orders
#- 1.The ex parte orders granted on 15th October 2020 are set aside
- 2.The prayer to strike out the suit for lack of jurisdiction is refused; the suit is not struck out
- 3.The application is allowed in part, with costs being in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mi-Tech Limited v Catherine Wambui Felistus [2021] KEELC 3120 (KLR)", Case Analysis (2021). Not stated on the face of the ruling (Misc/Notice of Motion dated 28th October 2020 in ELC suit at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3120/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.