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ELCDismissedMiscellaneous Application (Notice of Motion dated 27.9.2024)· [2024] KEELC 7377 (KLR)

Njeru v Sialala (Land Case Appeal 11 of 2024) [2024] KEELC 7377 (KLR)

Environment and Land Court
6 November 2024
1,573 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 dismissed a tenant's bid to pause her eviction, warning that hiding facts and filing multiple suits backfires with costs.

What this practically means

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Executive summary

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The applicant, a former tenant, moved the Environment and Land Court at Nairobi by notice of motion dated 27.9.2024 seeking a stay of execution of the Business Premises Rent Tribunal order in BPRT Case No. E661 of 2023 dated 29.8.2024, which directed her to give possession within 30 days, and leave to file as a pauper, which the court construed as a request to lodge an appeal. She alleged a tenancy with the premises' former owner, Alexander Kipaisatu Sialala, and feared eviction and destitution. The respondent, Thomas Sankei Kagoshi, the purchaser of the premises, opposed, asserting no tenancy relationship existed and that the applicant had not complied with service directions. Mbugua J identified six grounds rendering the suit 'dead on arrival': (1) no tenancy existed between the applicant and Thomas, her tenancy having been with Sialala; (2) material non-disclosure of the fate of a prior appeal against BPRT Case No. E413 of 2023, filed after pauper leave granted in Misc. Suit No. 33/2023; (3) multiplicity of suits amounting to abuse of process; (4) failure to state the nature of the intended suit or seek extension of time to appeal; (5) haphazard filing with the respondent's name altered by pen; and (6) non-compliance with self-executing service directions of 4.10.2024, which rendered the application null and void. The entire suit was dismissed with costs to the respondent.

Key legal issues

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01

Tenancy relationship between applicant and respondent

Holding

No evidence of tenancy between applicant and Thomas; her claim to remain in the premises was unfounded as the tenancy was with Sialala

Reasoning

The applicant admitted the tenancy was with Sialala under an agreement dated 1.1.2020, and that Sialala sold the premises to Thomas. Any damages during the tenancy were to be pursued against Sialala, as the tribunal had already found, so her claim to remain was baseless.

p. 2
02

Material non-disclosure

Holding

The applicant failed to disclose the fate of a previously filed Memorandum of Appeal against the BPRT Case No. E413 of 2023 decision

Reasoning

The applicant had already sued Sialala by a Memorandum of Appeal dated 24.1.2023 after leave to sue as a pauper was granted in Misc. Suit No. 33/2023, yet concealed the status of that appeal, which undermined good faith in the present application.

p. 2
03

Abuse of court process

Holding

Filing multiple suits simultaneously against Sialala and Thomas amounted to abuse of the court's process and the suit was not filed in good faith

Reasoning

The applicant pursued parallel proceedings (BPRT E413 of 2023, BPRT E661 of 2023 and Suit 905 of 2020) over the same subject matter, a multiplication of litigation the court found abusive, invoking the authority that litigation is not a game of chess.

p. 4
04

Non-compliance with self-executing directions on service

Holding

The applicant's failure to file affidavits of service as directed on 4.10.2024 triggered self-executing dismissal orders rendering her application null and void

Reasoning

The court had given clear, self-executing directions that non-compliance would result in dismissal of the application. The applicant, though able to file other documents, failed to file her affidavits of service in the portal, so the sanction took effect.

p. 3

Legal principles established

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  • Parties must make full disclosure of all material facts in judicial proceedings; non-disclosure undermines justice
  • Pursuing two processes at the same time amounts to abuse of court process
  • Parties are under a duty to comply with the directions and orders of the Court

Court orders

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  1. 1.The entire suit is dismissed
  2. 2.Costs of the suit awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Actoverriding objective

Cases cited (3)

  • In re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    [2020] eKLR
  • Moschion v Mwangi
    (Environment and Land Case 350 of 2018) [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling)
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over a notice of motion seeking stay of a Business Premises Rent Tribunal order and leave to file as a pauper

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, "Njeru v Sialala (Land Case Appeal 11 of 2024) [2024] KEELC 7377 (KLR)", Case Analysis (2024). Miscellaneous Application (Notice of Motion dated 27.9.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7377/eng@2024-11-06

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