[2000] KEHC 348 (KLR)
The court found that since the defendant denied receipt of the termination notice, there exists a triable issue regarding service. The mandatory requirement of service under Section 4(2) of Cap 301 must be established before the tenancy can be deemed terminated. Summary judgment is inappropriate where there is a...
Source-derived case information.
- Citation
- [2000] KEHC 348 (KLR)
- Parties
- Plaintiff: Ahmed Suleman Sumar; Defendant: Ali Ibrahim Robo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1658 of 1998
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Defence and Enter Summary Judgment
- Outcome
- application disallowed
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Protected Tenancy, Termination Notice, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Suleman Sumar
Plaintiff
Ali Ibrahim Robo
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether the defendant's defence should be struck out and summary judgment entered on admission.
- 2 Whether the requirements for termination of a protected tenancy under Section 4(2) of Cap 301 were met.
- 3 Whether there is a triable issue regarding service of the termination notice.
Ratio Decidendi
The court found that since the defendant denied receipt of the termination notice, there exists a triable issue regarding service. The mandatory requirement of service under Section 4(2) of Cap 301 must be established before the tenancy can be deemed terminated. Summary judgment is inappropriate where there is a dispute on a material fact such as service of notice. Therefore, the application to strike out the defence and enter summary judgment was disallowed, and the matter should proceed to full hearing to determine whether proper service was effected.
Court Disposition
application disallowed
Orders
- The application to strike out the defence and enter summary judgment is disallowed.
- Costs to be costs in the suit.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C.CIVIL CASE NO.1658 OF 1998
AHMED SULEMAN SUMAR ………………………..…… PLAINTIFFVERSUS
ALI IBRAHIM ROBO …………………………………..… DEFENDANTR U L I NG
This application by way of notice of motion brought under O.XXXV Rule I. O.VI Rule 13(1) and O.XII Rule 6 of the Civil Procedure Rules seeks orders to strike out the defendant’s defence and enter summary Judgment on admission.
The defendant is a protected tenant and under the Provisions of Section 4(2) of the Landlord and Tenant (Shops, Hotel, and Catering Establishments) Act Cap 301 tenancy can only be terminated after the tenant has been served with the termination Notice.
The applicant submits that he has served a termination notice to the Respondent under section 4 (2) of the Act and the Respondent having failed to make a reference to the Tribunal under section 6(1) of the same the tenancy was terminated with effect from 20/4/1998 the date indicated in the Notice
This is a mandatory requirement and the Respondent having denied in his defence having received the notice the suit ought to proceed to full hearing so that prove of service can be established.
For the above reason I disallow this application ad order that costs be costs in the suit.
Order accordingly.
Dated and delivered at Nairobi this 21st September, 2000
J.L.A OSIEMO
JUDGE