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ELCDismissedNotice of motion dated 15th May, 2025 (Environment & Land suit, court number not stated in judgment)· [2025] KEELC 7128 (KLR)

Bin Daud Limited v Mitoko & another (Environment and Land Case E227 of 2023) [2025] KEELC 7128 (KLR)

Environment and Land Court
21 October 2025
1,612 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 refused a tenant more time to pay Kshs 4 million rent, saying that dispute belongs to arbitration, not the courtroom.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (C.G. Mbogo, J) determined a notice of motion dated 15th May, 2025 in which the plaintiff/applicant sought temporary suspension of a proclamation notice dated 9th May, 2025 issued by Vintage Auctioneers and a notice of repossession dated 15th May, 2025, and an extension of 45 days to pay six months' advance rent of Kshs. 4,020,000/- due on 1st April, 2025 under a registered 25-year lease dated 22nd April, 2020 over LR No. 12553/6. The application was anchored on Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, Order 40 Rule 2 and Order 50 Rule 1 of the Civil Procedure Rules, and Section 7 of the Arbitration Act. The 1st defendant/respondent opposed, arguing the applicant was relitigating issues determined in a ruling of 3rd October, 2024, that the court was functus officio on rent, that distress under Section 3 of the Distress for Rent Act was lawful, and that the applicant had sublet the premises to a third party. The court held prayers 2 and 3 (suspension of the proclamation and repossession notices) overtaken by events since attachment occurred on 9th July, 2025. On the extension of time to pay rent, the court held that the lease terms including rent payment are subject of arbitration before an already appointed arbitrator, and any extension could be sought there; the court declined to rewrite the lease. The notice of motion was dismissed with costs to the defendants/respondents.

Key legal issues

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01

Whether the court should extend time for the applicant to pay 6 months advance rent of Kshs. 4,020,000/-

Holding

No - the application for extension of time was dismissed as the issue of rent payment falls within the reference to arbitration

Reasoning

The lease dated 22nd April, 2020 was admitted. The applicant admitted inability to pay rent due on 1st April, 2025 due to economic conditions. The court noted a prior ruling of 3rd October, 2024 referred the matter to arbitration while directing continued payment of rent. Since rent payment terms are within the arbitration, any extension request should be made to the arbitrator, not the court.

p. 4
02

Whether prayers 2 and 3 (suspension of proclamation and repossession notices) remained live

Holding

They were overtaken by events as the auctioneers had already attached the properties on 9th July, 2025

Reasoning

The 1st defendant/respondent deposed in a supplementary affidavit that on 9th July, 2025 Vintage Auctioneers attached the properties at the suit property, the applicant having leased the premises to a third party. The court thus found prayers 2 and 3 moot and confined itself to the extension-of-time prayer.

p. 3
03

Whether the court was functus officio having delivered the ruling of 3rd October, 2024

Holding

The court did not rule on functus officio as a bar but held that issues arising on the subject matter belong to the arbitrator

Reasoning

The respondents contended the court was functus officio on rent having referred the matter to arbitration. The court perused its ruling of 3rd October, 2024, noted it had directed continued payment of rent and referred disputes to arbitration, and held that any issue on the subject matter, including extension of rent payment, should be raised before the arbitrator.

p. 4

Legal principles established

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  • Where lease terms including rent payment are the subject of arbitration, the court will not comment further or grant reliefs touching those terms; such issues belong to the arbitrator

Court orders

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  1. 1.Prayers 2 and 3 of the notice of motion dated 15th May, 2025 declared overtaken by events and not granted
  2. 2.The notice of motion dated 15th May, 2025 is dismissed
  3. 3.Costs of the application awarded to the defendants/respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 40 Rule 2; Order 50 Rule 1
  • Arbitration ActSection 7
  • Land ActSection 152E
  • Distress for Rent ActSection 3

Cases cited (6)

  • Kenneth Kinoti Muriuki & 4 others v Dinara Developers Limited & Another
    [2020] eKLR
  • Hudson Kariuki Njiru t/a Vision Auctioneers v Kanyi
    (Civil Appeal E877 of 2022) [2024] KEHC 11847 (KLR) (Civ) (30 September 2024)
  • Huma v Association & another; Nairobi City County & 2 others (Respondent)
    (Environment & Land Case E318 of 2021) [2024] KEELC 870 (KLR) (15 February 2024)
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another
    [2001] KLR 112
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    [2017] eKLR
  • Joseph Kangethe Irungu v Peter Ng'ang'a Muchoki
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 13 of the Environment and Land Court Act; Order 40 Rule 2 and Order 50 Rule 1 of the Civil Procedure Rules; Section 7 of the Arbitration 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, "Bin Daud Limited v Mitoko & another (Environment and Land Case E227 of 2023) [2025] KEELC 7128 (KLR)", Case Analysis (2025). Notice of motion dated 15th May, 2025 (Environment & Land suit, court number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7128/eng@2025-10-20

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