Oceanic Towers Limited v Abdulrahman Bahassan
The bottom line
#A Mombasa court blocked a tenant from obstructing lifts and access at Oceanic Towers, but refused the landlord's shortcut to eviction, sending the dispute to trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is entitled to summary judgment under Order 36 Rule 1(b) of the Civil Procedure Rules, 2010 for vacant possession of the suit apartment and for the rent arrears claimed
- 2.Whether the Plaintiff is entitled to the temporary injunction sought in its Notice of Motion dated 9th July 2025
- 3.What further directions are appropriate for the disposal of the suit
- 4.Who should bear the costs of the two applications
Key legal issues
#Entitlement to summary judgment under Order 36 Rule 1(b)
Refused. The claim is not a liquidated demand nor confined to recovery of land; the Defendant never entered appearance (Order 36 requires a defendant who has 'appeared but not filed a defence'); and the record discloses triable issues on the Defendant's status
The Plaint seeks permanent injunctions, unquantified lift-repair costs and general damages, which are damages at large incompatible with summary procedure. The Defendant never entered appearance, so Order 10 machinery applies. The tenancy agreement names the Defendant as tenant while the occupants' list names him as permitted occupant, and he swore that he tendered rent by bankers' cheques; these are matters requiring interrogation of evidence at trial.
Entitlement to a temporary injunction
Granted. Prima facie case and irreparable injury established; balance of convenience also favours the Plaintiff
The unrebutted photographs, security occurrence book entries and dated chronology of incidents disclose an apparent infringement of the registered proprietor's right to quiet enjoyment under Article 40. Barricaded lifts and obstructed driveways remove means of escape and rescue in a multi-storey residential building; harm from a tampered fire alarm cannot be compensated in damages. The second Giella condition is satisfied and the third need not be reached.
Appropriate course for disposal of the suit
Formal proof, not summary judgment; suit fixed for pre-trial conferencing or formal proof on 16th November 2026
Sections 1A and 1B of the Civil Procedure Act require just, expeditious and proportionate resolution. Where a defendant has neither appeared nor defended and the claim includes unliquidated and equitable reliefs, the Plaintiff must call its evidence at formal proof, on which the court will determine status, possession, rent or mesne profits, repair costs, general damages and the permanent injunctions. The Defendant remains at liberty to seek leave to defend.
Costs of the two applications
Plaintiff awarded costs of the injunction motion; no order on the summary judgment motion; suit costs to abide the outcome
Costs follow the event under Section 27, but the event is divided. The Defendant, though technically successful in resisting summary judgment, filed no response, submissions or appearance and ignored three sets of directions; a party succeeding by operation of a procedural rule rather than effort is not to be rewarded with costs.
Legal principles established
#- Summary judgment under Order 36 Rule 1(b) is unavailable where the claim includes unliquidated reliefs such as general damages and permanent injunctions, and where the defendant has never entered appearance; the proper course is formal proof
- A default of pleading relieves a plaintiff of contradiction but not of proof; unanswered allegations must still be proved at a hearing
- No tenancy, however valid, licenses a tenant or occupant to barricade lifts, obstruct access, tamper with fire-safety installations or harass other occupants; a landowner is entitled to quiet enjoyment of the incidents of ownership under Article 40
Court orders
#- 1.The Plaintiff's Notice of Motion dated 11th May 2026 seeking summary judgment under Order 36 Rule 1(b) is declined and dismissed
- 2.The Plaintiff's Notice of Motion dated 9th July 2025 is allowed in terms of prayers 3 and 4; a temporary injunction issued restraining the Defendant, his servants, agents, employees and persons claiming under or through him from acts of nuisance or disturbance at Oceanic Towers and from harassing tenants/employees, barricading the lifts, tampering with the lifts' safety or fail-safe mechanisms, triggering fire alarms and blocking access to the building and/or parking
- 3.The interim orders granted on 15th July 2025 in terms of prayer 2 are subsumed in and superseded by the temporary injunction
- 4.The Plaintiff is at liberty to use reasonable and lawful means to remove any barricade erected on the building lifts and/or parking area, without harm or breach of the peace and with police assistance where necessary; no liberty to evict the Defendant or enter the suit apartment
- 5.The temporary injunction and liberty are interlocutory only and are not a determination of the Defendant's status as tenant or trespasser
- 6.The Plaintiff to file and serve its trial bundle within twenty-one (21) days
- 7.The suit is fixed for pre-trial conferencing or formal proof on 16th November 2026 at 9.00 o'clock in the forenoon
- 8.The Plaintiff to issue and serve a hearing notice for 16th November 2026 and file an affidavit of service not less than twenty-one (21) days before that date
- 9.A copy of the Ruling and hearing notice to be served on the Defendant within seven (7) days, through his advocates on record and by affixing a copy on the outer door of the suit apartment, with affidavits of service filed
- 10.The Plaintiff to have the costs of the Notice of Motion dated 9th July 2025; no order as to the costs of the Notice of Motion dated 11th May 2026; costs of the suit to abide the outcome
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit premises; applications brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 36, 40 and 51 of the Civil Procedure Rules, 2010
Relief refused
#Summary judgment for vacant possession of Apartment No. 604, unpaid rent of Kshs 2,626,650, eviction and police assistance (prayers 2, 3 and 4 of the Notice of Motion dated 11th May 2026)
The claim is not a liquidated demand nor confined to recovery of land; the Defendant never entered appearance so Order 36 is inapplicable; and triable issues exist as to whether the Defendant is tenant or trespasser
Costs
The Plaintiff shall have the costs of the Notice of Motion dated 9th July 2025. There shall be no order as to the costs of the Notice of Motion dated 11th May 2026. The costs of the suit shall abide the outcome of the case.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Plaintiff's Notice of Motion dated 11 th May 2026 seeking summary judgment under Order 36 Rule 1(b) of the Civil Procedure Rules, 2010 is declined and is hereby dismissed.
The Plaintiff's Notice of Motion dated 9th July 2025 is allowed in terms of prayers 3 and 4 thereof. Accordingly, pending the hearing and determination of this suit, a temporary injunction hereby is issued
The temporary injunction and the liberty granted in orders (b) and (d) above are interlocutory only and shall not be construed as any determination of the Defendant's status as tenant or trespasser
Summary judgment is a draconian measure and should be given in only the clearest of cases. A trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist.
The Plaintiff has invoked the wrong short cut, and a court may not widen a rule of procedure merely because the party in default is unattractive.
The Plaintiff shall have the costs of the Notice of Motion dated 9th July 2025. There shall be no order as to the costs of the Notice of Motion dated 11th May 2026. The costs of the suit shall abide the outcome of the case.
Issues in the judgment
#Garbled chronology of injunction incidents mixing October and November 2025 dates
Court cites its own prior decision as affirming authority
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oceanic Towers Limited v Abdulrahman Bahassan", Case Analysis (2026). ELC LC NO. E080 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6298/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.