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ELCPartially Allowed· [2025] KEELC 8491 (KLR)

Thaara Limited v Brew Hauz Lounge & Grill Limited (Environment and Land Case E234 of 2025) [2025] KEELC 8491 (KLR)

High Court of Kenya
4 December 2025
MKMOHAMMED N. KULLOW
3,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, a landlord at Rosslyn Riviera Mall (LR 21/1/179, Nairobi), moved the court by Notice of Motion dated 30th September 2025 under the Civil Procedure Act, Order 40 Rules 1 and 2 and the court's inherent jurisdiction, seeking break-in orders into Units 302, 312 and 320 and the Terrace at the Mall. The application followed a consent order recorded on 31st July 2025 compromising the entire suit, under which the Defendant was to pay Kshs 20,000,000 by 30th August 2025 and the balance by 15th September 2025, failing which the Plaintiff could evict and re-let. The Plaintiff averred total default and that the Defendant had locked and abandoned the premises. The Defendant opposed, alleging coercion, undue influence and pressure stemming from a CTS system malfunction that hid its Notice of Appointment, exaggerated arrears, and substantial investment (said to be Kshs 75,000,000) in fixtures, seeking 90 days to remove them. The court framed two issues: the validity of the consent and entitlement to break-in orders. Applying Flora Wasike v Wamboko, KCB v Specialized Engineering, NSSF v Mwalo, the Pao On coercion test and NBK v Pipeplastic, the court held that the Defendant's own counterproposal of Kshs 20 million, counsel's participation without protest, and failure to promptly repudiate the consent defeated the coercion claim; the consent was valid and binding. Finding total default and locked premises obstructing execution, and invoking Order 22 Rule 29(3), the court granted break-in and re-entry orders, restrained obstruction, awarded costs to the Plaintiff, and refused the 90-day fixture-removal grace period as an impermissible rewriting of the consent.

Key legal issues

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01

Validity and binding nature of the consent order of 31st July 2025

Holding

The consent was validly and voluntarily entered into and remains binding; the Defendant failed to establish any vitiating factor.

Reasoning

The court applied the test in Flora Wasike v Wamboko and the Pao On v Lau Yiu Long indicators of coercion: contemporaneous protest, alternative course, independent advice, and prompt repudiation. The Defendant's own written counterproposal of Kshs 20 million was incorporated into the consent, counsel participated without protest, and the Defendant took no timely step to set the consent aside until enforcement was sought.

p. 5
02

Entitlement to break-in and re-entry orders

Holding

The Plaintiff is entitled to break-in and re-entry orders, subject to reasonable safeguards regarding removal of any lawful fixtures.

Reasoning

The Defendant was in total default of the consent, activating the contractual and court-sanctioned right of re-entry. The premises were locked, as evidenced photographically and admitted indirectly by the Defendant's request for time to dismantle fixtures. Order 22 Rule 29(3) empowers the court to authorise forced entry where access is denied; denial of access would render the consent decree nugatory.

p. 6

Legal principles established

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  • A consent order is a binding contract and can only be set aside on grounds that would vitiate a contract such as fraud, collusion, coercion or misapprehension of material facts
  • Courts cannot rewrite contracts between parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
  • Where a judgment-debtor does not afford free access to premises, the court may remove or open any lock or break open any door necessary to put the decree-holder in possession

Court orders

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  1. 1.The Plaintiff is granted break-in and re-entry orders into Unit 302, Unit 312, Unit 320 (all on Level Three), and the Terrace on Levels Two and Three, Rosslyn Riviera Mall, LR No. 21/1/179
  2. 2.The Plaintiff is at liberty to take possession of the said premises forthwith, in accordance with the terms of the consent order recorded on 31st July 2025
  3. 3.The Defendant shall not obstruct or interfere with the Plaintiff's re-entry, repossession or re-letting of the premises
  4. 4.Costs of the application shall be borne by the Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 22 Rule 29(3)

Cases cited (8)

  • John Nthumbi Kamwithi v Asha Akumu Juma
    [2018] KEHC 5161 (KLR)
  • Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd
    [1980] KLR
  • Board of Trustees NSSF v Michael Mwalo
    [2015] eKLR
  • KCB & Another v Samuel Kamau Macharia & 2 Others
    [2008] KECA 334
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd
    [2001] eKLR
  • Chase Bank (In Liquidation) v Khan & 19 Others
    [2023] KEHC 17559
  • Flora Wasike v Wamboko
    [1982–88] 1 KAR 625
  • Pao On v Lau Yiu Long
    [1980] AC 614
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 40 Rules 1 and 2 of the Civil Procedure Rules and the inherent jurisdiction of the Court

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, "Thaara Limited v Brew Hauz Lounge & Grill Limited (Environment and Land Case E234 of 2025) [2025] KEELC 8491 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8491/eng@2025-12-04

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