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ELCDismissedEnvironment & Land Case 9 of 2023· [2024] KEELC 3884 (KLR)

Jethwa v Janoowala (Environment & Land Case 9 of 2023) [2024] KEELC 3884 (KLR)

Environment and Land Court
2 May 2024
6,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendant raised a preliminary objection dated 11th October 2023 seeking striking out of the Plaintiff's suit for vacant possession of premises on Mombasa/Block XIX/205 and mesne profits, on two grounds: that the suit offended Section 6 of the Civil Procedure Act as the dispute was pending before the Business Premises Rent Tribunal in BPRT (Mombasa) Case No. E259 of 2022, and that Sections 2 and 12(1)(e) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) vested exclusive jurisdiction over controlled tenancies in the Tribunal. The Defendant submitted that the tenancy was unwritten and thus a controlled tenancy, with the Tribunal having original jurisdiction. The Plaintiff countered that the known tenant, S.G. Janoowalla, died on 10th September 1999; that a prior reference filed in the dead tenant's name was struck out, with Munyao Sila J, on appeal, declaring the landlord's notice and the reference nullities; and that the Defendant's claim to be a tenant rested on contested facts requiring a full trial. The court framed three issues: the competency of the objection, entitlement to relief, and costs. Applying Mukisa Biscuits, it held the objection raised pure points of law and was competent. However, on the merits it found no controlled tenancy or subsisting BPRT dispute existed given the tenant's death, so neither Section 6 of the Civil Procedure Act nor the Act ousted the Court's jurisdiction. The objection was dismissed with costs to be borne by the person representing himself as the Defendant, and the suit was set down for pre-trial conference and hearing.

Key legal issues

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01

Whether the preliminary objection met the threshold of a pure point of law

Holding

The objection was properly filed as it raised issues of jurisdiction and sub judice, but it ultimately failed because its resolution depended on facts.

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd, the court found the objection raised serious and pure issues of law (jurisdiction and res sub judice) which could be determined before full trial. The objection was therefore competent. However, on analysis, the underlying question whether a controlled tenancy subsisted turned on facts, not pure law, so the objection could not succeed on its merits.

p. 8
02

Whether this Court lacked jurisdiction in favour of the Business Premises Rent Tribunal over a controlled tenancy

Holding

No; with the known tenant dead since 1999 and the BPRT proceedings terminated, no controlled tenancy dispute subsisted before the Tribunal, so the ELC retained jurisdiction.

Reasoning

While the BPRT is clothed with jurisdiction over controlled tenancies under Section 12(1) of the Act, the certificate of death showed the tenant died on 10th September, 1999, and Justice Munyao's appellate judgment had struck out the reference filed in a dead man's name. There was therefore no suit subsisting before the BPRT to oust this Court's jurisdiction under Sections 2, 6 and 12 of the Act.

p. 9
03

Whether the suit offended Section 6 of the Civil Procedure Act (sub judice)

Holding

Section 6 was not breached because no proper proceeding remained pending before the BPRT; the objection failed.

Reasoning

For sub judice to apply there must be a matter directly and substantially in issue in a previously instituted suit pending before a competent court. The court found no proper dispute was pending before the BPRT: the earlier reference had been struck out and the current complaint was dependent on contested facts about who occupies the premises. The proper forum to resolve those facts is a full trial before this Court.

p. 10

Legal principles established

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  • A preliminary objection raises a pure point of law and cannot be raised where facts have to be ascertained
  • A court without jurisdiction must down its tools
  • Where a previously instituted suit is pending in a competent court between the same parties over the same subject matter, the court must stay the later suit

Court orders

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  1. 1.The Notice of Preliminary Objection dated 11th October, 2023 by the Defendant is dismissed with costs
  2. 2.The suit to be fixed for hearing on 2nd October, 2010 (as written in the judgment); mention on 11th July, 2024 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
  3. 3.The costs to be borne by the person representing himself as the Defendant in this suit

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 27(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 2
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 12(1)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 12(1)(e)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 15
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSections 3 and 13
  • Civil Procedure Rules, 2010Order 11

Cases cited (9)

  • Kaka Mohamed v Mohamed Ali
    (2018) eKLR
  • Leo Investment Limited t/a Mara Concord Game Lodge v Samson Ololmaitai & Another
    [2020] eKLR
  • Eebtulla Properties Limited
    (1979) eKLR 96
  • Naresh Kumar Balubhai Adatia v Samir Thakkar & Another (ELC Case No. 87 of 2022)
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    [1969] EA 696
  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Limited
    (1989) eKLR
  • Republic v Paul Kihara Kariuki, the Attorney General & 2 Others Ex-parte Law Society of Kenya
    (2020) eKLR
  • S.G. Janoowalla v Rajnikant Madhavji Jethwa (BPRT Case No. 32 of 2017, appeal ELC Appeal No. 5 of 2020, judgment of Munyao Sila J of 10th February 2022)
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 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, "Jethwa v Janoowala (Environment & Land Case 9 of 2023) [2024] KEELC 3884 (KLR)", Case Analysis (2024). Environment & Land Case 9 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3884/eng@2024-05-02

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