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ELCPartially AllowedCivil Appeal E104 of 2022· [2023] KEELC 21720 (KLR)

Lets Koroga v Sufra Garden Restaurant Limited; Kalvinder Matharu (Intended Interested Party)

Environment and Land Court at Nairobi
23 November 2023
AOAA Omollo
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a landlord to return a tenant's seized goods for free, but refused to punish the restaurant it had earlier ruled against.

What this practically means

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Executive summary

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The Appellant, Lets Koroga, moved the Environment and Land Court at Nairobi by Notice of Motion dated 3rd July 2023 seeking review of the court's ruling and orders of 29th June 2023, so that the Respondent, Sufra Garden Restaurant Limited, and the Intended Interested Party, Kalvinder Matharu, would release itemised goods (bar supplies, furniture, kitchen equipment, beverages and related items) removed from the suit premises on Mvuli Road, Westlands; it also sought contempt summons against both. The application was founded on alleged discovery of new and important matter: that the Applicant had been locked out of the premises and denied access to its goods, and that Matharu was demanding USD 500 per day before releasing them. The Respondent opposed, deposing that he did not participate in the eviction, that the one-year tenancy expired on 31st December 2022 with rent and service charge arrears outstanding, and that he disobeyed no court order. Applying Order 45 and the Otieno Ragot decision, the court held that the alleged locking out was information within the Applicant's own knowledge at all times and thus not new matter. However, the uncontradicted demand by Matharu, who had no landlord-tenant relationship with the Applicant and who neither filed a reply nor denied carting away the goods, constituted sufficient cause for review against him. Prayer 2 was allowed against Matharu, who was directed to release the itemised goods forthwith. No relief was granted against the Respondent and no contempt order was made. Costs of the application were awarded to the Respondent.

Key legal issues

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01

Whether the alleged locking out of the premises amounted to new and important matter justifying review

Holding

It did not; the locking out, if it occurred, was within the Applicant's own knowledge at all times and thus failed the strict-proof requirement

Reasoning

The court reasoned that the Applicant used the premises daily for its business, so any interference with the premises was information available at the Applicant's fingertips. Discovery of new matter under Order 45 requires strict proof that the matter was not within the applicant's knowledge and could not be adduced despite due diligence, which was not met on this limb.

p. 3
02

Whether the demand of USD 500 per day by the Intended Interested Party before releasing the goods justified review

Holding

Yes; this was sufficient cause for review as against Kalvinder Matharu, who was holding the goods illegally and had not contradicted the averment

Reasoning

The Intended Interested Party filed no affidavit or grounds of opposition and did not deny carting away the listed goods. Since no landlord-tenant relationship existed between him and the Appellant, he had no basis to demand payment before releasing the goods. The court found sufficient cause shown and allowed prayer 2 against him.

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Whether the Respondent should be subject to review and contempt proceedings

Holding

No; there was no evidence linking the Respondent to the locking of the premises or the demand for payment

Reasoning

The Respondent deposed that he did not participate in the forceful eviction and was not present when the premises were locked. The court found no evidence connecting him to the locking up of the premises or the demand for payment, so the earlier orders against him were not disturbed and no contempt summons issued.

p. 3

Legal principles established

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  • An application for review on the ground of discovery of new matter or evidence requires strict proof that the matter was not within the applicant's knowledge and could not be adduced despite due diligence
  • Information that was within an applicant's own knowledge at all material times cannot constitute new and important matter for review
  • A person with no landlord-tenant relationship with an applicant has no basis to demand payment before releasing the applicant's goods

Court orders

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  1. 1.Prayer 2 of the application dated 3rd July 2023 granted as against Kalvinder Matharu, the Intended Interested Party, who is directed to release the itemised goods forthwith to the Appellant
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "Lets Koroga v Sufra Garden Restaurant Limited; Kalvinder Matharu (Intended Interested Party)", Case Analysis (2023). Civil Appeal E104 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21720/eng@2023-11-23

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