[2018] KEELC 3918 (KLR)
The court found that it has jurisdiction to hear and determine the dispute under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Plaintiffs' claims relate to the use and occupation of land and enforceable interests in land, which fall squarely within the mandate of the...
Source-derived case information.
- Citation
- [2018] KEELC 3918 (KLR)
- Parties
- Plaintiff: Hussein Isaak Hassan; Plaintiff: Yebon Mebrahtu Tsadik; Defendant: Muguga Investment Company Ltd; Defendant: Nuni General Trading Company Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1566 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Preliminary objections dismissed with costs to the Plaintiffs.
- Judges
- AK Bor
- Legal Topics
- Jurisdiction of Environment and Land Court, Landlord Tenant Disputes, Injunctions, Lease Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Isaak Hassan
Plaintiff
Yebon Mebrahtu Tsadik
Plaintiff
Muguga Investment Company Ltd
Defendant
Nuni General Trading Company Ltd
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear and determine the dispute between the Plaintiffs and Defendants regarding leased premises.
- 2 Whether the matter should be determined by the Business Premises Rent Tribunal instead of the Environment and Land Court.
- 3 Whether the Plaintiffs are entitled to injunctive relief and continued possession pending determination of the suit.
Ratio Decidendi
The court found that it has jurisdiction to hear and determine the dispute under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Plaintiffs' claims relate to the use and occupation of land and enforceable interests in land, which fall squarely within the mandate of the Environment and Land Court. The Defendants' argument that the matter should be before the Business Premises Rent Tribunal was rejected, as the reliefs sought by the Plaintiffs, including injunctions and declarations, are not within the Tribunal's jurisdiction. The court relied on statutory provisions and persuasive authority to conclude that the preliminary objections lacked...
Court Disposition
Preliminary objections dismissed with costs to the Plaintiffs.
Orders
- The Defendants' preliminary objections are dismissed.
- Costs of the preliminary objections are awarded to the Plaintiffs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 1566 OF 2014
HUSSEIN ISAAK HASSAN.......................................................1ST PLAINTIFF
YEBON MEBRAHTU TSADIK................................................2ND PLAINTIFF
VERSUS
MUGUGA INVESTMENT COMPANY LTD........................1ST DEFENDANT
NUNI GENERAL TRADING COMPANY LTD....................2ND DEFENDANT
RULING
Both Defendants have raised a preliminary objection urging that this court does not have jurisdiction and that it is the Business Premises Rent Tribunal which ought to determine this case. The notices of preliminary objection are dated 14/4/2015. The 2nd Defendant argues that a lease dated 26/4/2014 was registered on 3/12/2014 in favour of the 2nd Defendant. It argues that since the Plaintiff acknowledge receipt of the notice from the 2nd Defendant, its lease was converted into periodic tenancies which simply require a notice. The 2nd Defendant further argues that the suit ought to be dismissed since court lacks the jurisdiction to transfer it to the Business Premises Rent Tribunal.
On its part, the Plaintiff argues that the High Court has unlimited jurisdiction and that it can determine this matter. Further, the Plaintiff argues that there is a valid lease between the 2nd Plaintiff and the 1st Defendant which binds both parties. The Plaintiff’s advocate urged the court to dismiss the preliminary objection and award its costs.
The 1st Plaintiff entered into a lease with the 1st Defendant of two shops situated in the premises known as L. R. No. 36/VII in Eastleigh Nairobi. The lease was to run for 6 years with effect from 1/1/2012. The agreement provided that either party may terminate it by giving 3 months’ notice. The 2nd Plaintiff entered into an agreement with the 1st Defendant dated 22/11/2012 for stall numbers 8 and 14 situated in Eastleigh L. R. No. 36/7. The lease was for 6 years but was not registered. Either party could terminate the agreement on giving 3 months’ notice of the intention to do so.
Through another lease dated 4/7/2014, the 2nd Plaintiff entered into another lease with the 1st Defendant for letting of shop numbers 3 and 4 within the same plot.
On 26/11/2014 the 1st Defendant entered into another lease with the 2nd Defendant over the same premises. The 1st Defendant granted the 2nd Defendant the premises for 15 years from 1/3/2015 at the agreed rent of Kshs. 1 million as an advance payment. Under the agreement the 2nd Defendant was to construct a 5 storeyed shopping mall comprising shops and offices.
The Plaintiffs relied on the case of Said Majid Said v James Titus Kisia [2015] eKLR in which Kasango J. while dealing with a similar objection found that the tenant was entitled to approach the court rather than the Business Premises Rent Tribunal because the tribunal has no jurisdiction to entertain the tenant’s prayers for declaration and injunction.
The court has considered the matter. In the suit herein, the Plaintiffs seek orders of injunction, general damages and an order directing the Defendants to allow the Plaintiffs to continue in quiet and uninterrupted possession of the shops they leased until the leases expire.
Article 162(2)(b) of the Constitution mandated Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land. Parliament enacted the Environment and Land Court Act. Section 13(1) of this Act states that the Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution. Section 13(2) (d) empowers the court to hear and determine disputes relating to environment and land including disputes relating to private land and contracts, choses in actions or other instruments granting any enforceable interests in land. The court exercises appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within its jurisdiction under Section 13(4).
This court has jurisdiction to hear this matter. The Defendants preliminary objections are dismissed with costs to the Plaintiffs.
Dated and delivered at Nairobi on this 12th day of March 2018.
K. BOR
JUDGE
Delivered in open court in the presence of: -
Ms. Fundi holding brief for the Plaintiff
Ms. Mugenya holding brief for Mr. Waweru for the 1st Defendant
Ms. Mugenya holding brief for Mr. Ondieki for the 2nd Defendant
Mr. V. Owuor- Court Assistant