[2017] KEELC 1633 (KLR)
The court found that the tenancy agreement between the parties was for a term of five years and three months, which does not fall within the definition of a controlled tenancy under section 2 of Cap 301. Therefore, the Environment and Land Court has jurisdiction to hear and determine the suit. The court further held...
Source-derived case information.
- Citation
- [2017] KEELC 1633 (KLR)
- Parties
- Plaintiff: Erfan Rafique; Defendant: Geofrey Mugambi Gituma (T/A Fashion Center)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 279 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to plaintiff
- Legal Topics
- Jurisdiction of Eland Court, Controlled Tenancy, Preliminary Objection, Eviction Orders, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erfan Rafique
Plaintiff
Geofrey Mugambi Gituma (T/A Fashion Center)
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the suit given the provisions of Cap 301.
- 2 Whether the orders sought amount to eviction orders in breach of the rules of natural justice.
- 3 Whether the preliminary objection should be upheld and the suit struck out.
Ratio Decidendi
The court found that the tenancy agreement between the parties was for a term of five years and three months, which does not fall within the definition of a controlled tenancy under section 2 of Cap 301. Therefore, the Environment and Land Court has jurisdiction to hear and determine the suit. The court further held that the issue of whether the orders sought would breach the rules of natural justice is not a pure point of law and cannot be raised as a preliminary objection. Consequently, the preliminary objection failed on all grounds and was dismissed with costs to the plaintiff.
Court Disposition
preliminary objection dismissed with costs to plaintiff
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 279 OF 2016
ERFAN RAFIQUE……………………………..........................………PLAINTIFF
VERSUS
GEOFREY MUGAMBI GITUMA (T/A FASHION CENTER)………DEFENDANT
R U L I N G
The preliminary objection filed on 04. 05. 17 by defendant raises the following grounds:-
1) That this Honourable Court has no jurisdiction to hear and determine this suit as the same falls within the tribunal established under cap 301 laws of Kenya.
2) That the prayers sought in the application cannot be granted as the same will be tantamount to granting eviction orders contrary to the law in breach of Rules of Natural Justice.
3) That the suit herein should therefore be struck out with costs.
Directions were given by this Court for the Preliminary Objection to be argued by way of Written Submissions. The Plaintiff’s side did file their Submissions, but not so the Defendant.That notwithstanding, I will still proceed to analyse the merits thereof.
JURISDICTION
Does this Court have jurisdiction to hear the matter?. As rightly submitted by the Plaintiff, a controlled tenancy is provided for under section 2 of Cap 301. The Tenancy agreement between the parties (a copy is availed by Plaintiff) stipulates that the term of the tenancy was to be five years and 3 months. The matter is hence properly before the Court.
Are the orders sought for a violation of the rules of Natural Justice?. This is not a pure point of law. It is a point that invites argument in the realm of facts. The defendant ought to be raising this point as a ground of opposition to the application and not as the Preliminary Objection. The Preliminary Objection fails on this point.
The Preliminary Objection has not succeeded in ground 1 & 2 and it therefore fails in ground three. The same is hereby dismissed with costs to Plaintiff.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 4TH DAY OF OCTOBER, 2017
IN THE PRESENCE OF:
CA: Janet
Kevin Gitonga H/B for Kiambi Mungania for Plaintiff
Hon. L.N. MBUGUA
ELC JUDGE