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ELCDismissedNot stated in judgment· [2022] KEELC 1715 (KLR)

Abdiftah Mohamed Abdi v Al-Sawae Mohamed Abudlqader A.Hassan [2022] KEELC 1715 (KLR)

Environment and Land Court
2 February 2022
LMLucy N. Mbugua
2,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A tenant claiming protection must prove a real tenancy with the new landlord, and cannot fight the same dispute in two Kenyan courts at once.

What this practically means

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Executive summary

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The court dealt with two applications: the Plaintiff's notice of motion dated 29.10.2020 seeking an injunction to restrain the Defendant from locking up or evicting him from Shops B011 and B012 on LR. No. 36/VII/451 Eastleigh, and the Defendant's application dated 15.1.2021 seeking discharge of interim orders and striking out of the suit. The Plaintiff claimed to be a protected tenant under Cap 301 who had paid rent to the Defendant following the Defendant's August 2020 purchase of the premises from Borah Developers Limited, and who had been issued a three-month notice to vacate. He complained to the Business Premises Rent Tribunal but, alleging the Tribunal had no Chairman, filed this suit. The Defendant asserted ownership, contended the Plaintiff was an illegal sub-tenant who was not among the tenants who executed fresh tenancy agreements, and that the suit duplicated BPRT Case No. 856 of 2020. The court found no landlord-tenant relationship: the letter of 21.8.2020 directing payment of rent was not a binding tenancy agreement, and receipts referred to Borah Developers. The Plaintiff did not refute that he was a sub-tenant or that he had filed a parallel BPRT case. Relying on Section 6 of the Civil Procedure Act and the authorities cited, the court held the suit sub-judice and an abuse of process. The Plaintiff's application was dismissed with costs, the interim orders of 5.11.2020 were discharged, and the Defendant's application was allowed with the suit struck out with costs to the Defendant.

Key legal issues

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01

Existence of a controlled tenancy

Holding

No tenancy relationship between the parties was established; the Plaintiff was alleged to be an illegal sub-tenant and did not refute that averment

Reasoning

The court held the letter of 21.8.2020 merely directed payment of rent and was not a binding agreement. Receipts were between the Plaintiff and Borah Developers, not the Defendant. The Defendant's averment that existing tenants signed fresh agreements, which the Plaintiff did not sign, went unrefuted, so no controlled tenancy under Cap 301 was established.

p. 2
02

Abuse of process and sub-judice

Holding

The suit was sub-judice given BPRT Case No. 856 of 2020 and its filing was an abuse of court process, warranting striking out

Reasoning

The Plaintiff had lodged a complaint before the BPRT under Section 6 of Cap 301 yet sought parallel reliefs in this court over the same subject matter. The court invoked Section 6 of the Civil Procedure Act and authority on multiplicity of suits, holding that a litigant cannot run two processes in parallel and struck out the suit.

p. 3

Legal principles established

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  • A letter directing rent to a new owner is not itself a binding tenancy agreement obliging the new owner to inherit existing tenants
  • A litigant may not pursue two parallel processes with the same effect in two courts at the same time

Court orders

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  1. 1.The plaintiff's application dated 29.10.2020 is dismissed with costs
  2. 2.The interim orders of injunction given on 5.11.2020 are discharged
  3. 3.The defendant's application dated 15.1.2021 is allowed to the extent that the suit is struck out with costs to the defendant

Authorities

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Legislation

  • Landlords and Tenants (Shops, Houses and Catering Establishments) Act Cap 301 Laws of KenyaSection 6
  • Landlords and Tenants (Shops, Houses and Catering Establishments) Act Cap 301 Laws of KenyaSection 12(4)
  • Civil Procedure ActSection 6

Cases cited (2)

  • Dhirajial J Shah & Another v. Vija Amrittal Shetia
    (2018) eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others ex-parte Law Society of Kenya
    (2020) eKLR
Jurisdiction invoked
Original jurisdiction under the Landlords and Tenants (Shops, Houses and Catering Establishments) Act Cap 301 and the Civil Procedure Act

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, "Abdiftah Mohamed Abdi v Al-Sawae Mohamed Abudlqader A.Hassan [2022] KEELC 1715 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1715/eng@2022-02-02

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