[2000] KEHC 277 (KLR)
The court found that the defence filed by the respondent raised triable issues, specifically the assertion that a reference had been filed with the Business Premises Tribunal and decided in the respondent's favour. In such circumstances, the law requires that the defendant be given an opportunity to defend the suit....
Source-derived case information.
- Citation
- [2000] KEHC 277 (KLR)
- Parties
- Plaintiff: Mary Kanini Kibia; Defendant: Mukura Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 72 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Summary Judgment
- Outcome
- application for summary judgment disallowed
- Judges
- JL Osiemo
- Legal Topics
- Landlord Tenant Disputes, Summary Judgment, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kanini Kibia
Plaintiff
Mukura Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the defendant's defence raises triable issues warranting a full hearing.
- 2 Whether summary judgment should be entered for the applicant based on the alleged failure to file a reference to the Tribunal after notice of termination of tenancy.
Ratio Decidendi
The court found that the defence filed by the respondent raised triable issues, specifically the assertion that a reference had been filed with the Business Premises Tribunal and decided in the respondent's favour. In such circumstances, the law requires that the defendant be given an opportunity to defend the suit. Summary judgment is only appropriate where there is no bona fide defence or triable issue. Since the defence raised matters that require investigation at trial, the application for summary judgment was disallowed.
Court Disposition
application for summary judgment disallowed
Orders
- The application for summary judgment is disallowed.
- Costs to be costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C.C.CIVIL CASE NO.72 OF 2000
MARY KANINI KIBIA ……………………..………….. PLAINTIFF
VERSUS
MUKURA KAMAU ………………………………….. DEFENDANT
R U L I N G
The applicant is the owner and landlady of plot NO.16/3 Githunguri Market while the Respondent is her tenant. The applicant alleges that the Respondent had breached the terms of the tenancy agreement and she had served him with a notice of termination of tenancy dated 21st January, 1999 under section 4(2) of the Land Lord and tenant (shops, hotels and catering establishment) Act. The respondent did not file a reference to the Business Premises Tribunal within 2 months of receipt of the Notice of Termination of tenancy under section 4(4) of the Act.
On the 17th January, 2000 the applicant filed a suit by way of plaint seeking Judgment for Shs.91,000/= with interest at court rates plus mesue profit of Shs.7000/= per month from February, 2000 until the Defendant/Respondents vacates the suit premises. She also sought for orders of eviction and costs.
The Plaint was dated 11/1/2000 the same day the applicant filed an amended plaint seeking similar orders. The defendant/respondent on being served with the plaint filed a defence. In paragraph 6 of the defence he states that on receipt of Notice of termination of tenancy, he had filed a reference to the Tribunal being SPRT No.5 of 1999 and which was decided in his favour.
On 6th March the applicant filed this application for summary Judgment as prayed in the Plaint citing failure to file reference Tribunal by the Respondent after receipt of the said notice. When this matter came up for hearing the Respondent could not address the court as he had failed to file replying affidavit to the application. Despite the fact that the defendant did not address the court. On perusal of the defence I find that same raises triable issues. One of those triable issues is that the defendant had filed awww.kenyalawreports.or.ke 3 reference to the Tribunal No. 5 of 1999 which he alleges was decided in his favour when a defence filed raises any triable issues the defendant ought to be given an opportunity to defend the suit.
For the above reason this application is disallowed.
Cost to be costs in the cause.
Dated and Delivered at Nairobi this 21st day of June, 2000
J.L.A. OSIEMO
JUDGE