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ELCDismissedNotice of motion dated 30th October, 2020 (suit filed at Environment and Land Court, Mombasa)· [2021] KEELC 3817 (KLR)

Mantel Limited v Randolph Tindika t/a Tindika & Co Advocates [2021] KEELC 3817 (KLR)

Environment and Land Court
17 March 2021
CYC.K. Yano
1,641 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 refused to evict a Mombasa tenant before full trial, ruling landlords must meet a very high bar for early eviction orders.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR Mombasa/Block XXVI/144 in Kizingo, Mombasa, moved the court by notice of motion under Orders 40 and 51 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking a mandatory injunction compelling the defendant to vacate and hand over vacant possession, or alternatively an order for eviction. The plaintiff asserted the defendant entered under a written lease dated 1st November 2016 for 5 years and 3 months, failed to pay registration costs, remained in arrears of rent, and ignored a three months' termination notice expiring 1st February 2018. The respondent objected on jurisdiction grounds, contending he was a protected tenant under Cap 301 whose tenancy could not be terminated save per that Act, that there was material non-disclosure, and that the matter was sub judice in CMCC No. 2012 of 2019 and HCCA E.14 of 2020. On jurisdiction, the court held that Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act confer power over disputes relating to occupation of land and rents. On the injunction, applying Locabail and the Mugenda decision, the court held that mandatory injunctions at interlocutory stage require special circumstances and a clear, unusually strong case, which the applicant failed to demonstrate given the contested protected-tenancy claim and parallel proceedings. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the ELC over landlord-tenant disputes

Holding

The court has jurisdiction, as the dispute over rent and occupation falls within Section 13(2) of the ELC Act read with Article 162(2)(b)

Reasoning

The respondent objected that a landlord-tenant dispute belongs to the Business Premises Rent Tribunal regime. The court reasoned that Article 162(2)(b) establishes courts with High Court status for disputes over use and occupation of land, and Section 13(2) expressly covers disputes relating to rents. The dispute was over rent and occupation of business premises, so jurisdiction was properly vested in the ELC.

p. 2
02

Whether a mandatory injunction should issue at interlocutory stage

Holding

No - the applicant did not establish the clear and unusually strong case or special circumstances required

Reasoning

Citing Locabail International Finance Ltd v Agro Export, the court held that mandatory injunctions at interlocutory stage require special circumstances and a high sense of assurance of ultimate success. Because the respondent claims protection as a tenant under Cap 301 and the termination notice's validity is contested, and other proceedings were pending, the case was not one that could be decided summarily at once.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction over landlord-tenant disputes concerning rent and occupation of land under Article 162(2)(b) and Section 13(2) of the ELC Act
  • A mandatory injunction will not be granted on an interlocutory application absent special circumstances, and only in clear cases, on a higher standard than for prohibitory injunctions

Court orders

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  1. 1.The notice of motion dated 30th October, 2020 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b) and 162(3)
  • Environment and Land Court ActSection 4, Section 13(2)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrders 40 and 51
  • Landlord and Tenant (Shops, Hotels, & Catering Establishments) Act Cap 301Protective tenancy provisions (invoked by respondent)

Cases cited (2)

  • Locabail International Finance Ltd –v- Agro Export & Another
    (1986) 1 ALL ER 901
  • Olive Mwihaki Mugenda & Another –v- Okiya Omtata Okoit & 4 Others
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act, 2011

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, "Mantel Limited v Randolph Tindika t/a Tindika & Co Advocates [2021] KEELC 3817 (KLR)", Case Analysis (2021). Notice of motion dated 30th October, 2020 (suit filed at Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3817/eng@2021-03-17

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