Africa Kivulini Management Limited v David Pius Muiruri & 2 others [2021] KEELC 3121 (KLR)
The bottom line
#A Kenyan court refused to protect a hotel manager from eviction because it broke its own court-approved agreement to pay rent.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 29th October 2020 should be set aside
The consent order was valid and binding and, the Plaintiff having failed to comply with its conditions, it was set aside on the 2nd Defendant's application
The consent order restrained eviction on condition that the Plaintiff deposit outstanding and future rent and settle utility bills within 14 days. The Plaintiff admitted being in arrears for 12 months and invoked force majeure (Covid-19) only after the fact, without seeking to vary the consent. The court held the order had contractual effect and that the Plaintiff could not benefit from it while in breach, so the application to set it aside succeeded.
Whether the Plaintiff was entitled to a temporary injunction against the 1st Defendant
The injunction application was disallowed for lack of merit given the Plaintiff's disobedience of court orders
The Plaintiff entered the premises on the authority of the 2nd Defendant under the Management Contract; the question of the hotel's location on Plot 408 or 669 remained contested (with a boundary report showing encroachment difficult to quantify), and the Plaintiff's breach of the consent order disentitled it to equitable relief. The court found no merit in the application and disallowed it.
Whether Clause 4 of the Management Contract (force majeure) excused the Plaintiff's non-payment
The force majeure clause did not excuse non-compliance with the consent order since the pandemic pre-existed the consent
The Plaintiff invoked Clause 4 citing Covid-19's disruption of tourism. The court noted the pandemic was already in force when the parties recorded the consent on 29th October 2020, and the Plaintiff had not sought to set the consent aside on hardship grounds at the time. Non-payment of rent for 12 months therefore remained a breach justifying termination under Clause 10(c) and the setting aside of protective orders.
Legal principles established
#- A consent order has contractual effect and binds the parties who recorded it; a party cannot remain in the premises under a consent order while disobeying its conditions
Court orders
#- 1.The Plaintiff's application dated 27th February 2020 is disallowed/dismissed
- 2.The 2nd Defendant's application dated 18th January 2021 is allowed as prayed, i.e. the consent order of 29th October 2020 and consequential orders are set aside and an injunction restraining the Plaintiff from carrying away, hiving-off or taking equipment, furniture and fixtures from Sunpalm Beach Resort Watamu is granted pending hearing of the main suit
- Jurisdiction invoked
- Article 162(b) of the Constitution as read with Section 13(1) of the Environment & Land Court Act No. 19 of 2011 (jurisdiction contested but objection withdrawn)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Africa Kivulini Management Limited v David Pius Muiruri & 2 others [2021] KEELC 3121 (KLR)", Case Analysis (2021). Not stated in judgment (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3121/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.