[2018] KEHC 7024 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MOMBASA

ELC NO. 278 OF 2017

MOHAMED MOHAMED HATIMY......................PLAINTIFF

-VERSUS-

LAMECK OLOUCH T/A

LAMETHE HYGENIC FOODS..........................DEFENDANT

RULING

1. The applications for determination are the Notice of Motion dated 6th April 2017 by the plaintiff seeking to strike out the defence filed herein and to enter judgement in terms of the plaint and the Notice of motion dated 29th November 2017 by the defendant seeking leave to amend the statement of defence filed herewith.

PLAINTIFF’S NOTICE OF MOTION DATED 6/4/17

2. The plaintiff’s application dated 6th April 2017 is premised on the grounds that the term under which the defendant held the suit premises lapsed on 28/2/2015 and the defence filed on record ostensibly that the defendant was holding under a tenancy controlled within the meaning of Section 2 of cap 301- is untenable unfounded and frivolous and amounts to an abuse of the court process and that the question of the plaintiff’s entitlement to possession and the attendant reliefs too, are such as should not abide a trial as mere application of the relevant law to the settled facts should suffice to dispose of the matter.

3. The application is supported by the affidavit of Mohamed Mohamed Hatimy, the plaintiff sworn on 6th April 2017 and further affidavit sworn on 14th November 2017. The plaintiff deposes inter alia, that he is the landlord in relation to the tenancy held by the defendant in respect of a portion of the property known as MOMBASA/BLOCK XX/451 wherein the defendant has been carrying on the business of a restaurant. That the defendant at the expiry of the tenancy held the suit premises under a term of 5 years 3 Months effective 1st December 2009, which term was consummated by a formal lease agreement dated 16th November 2010 which was executed by the parties and contained within it a rent schedule. The plaintiff deposes that on 31st December 2014, counsel acting through his behest wrote to the defendant advising him that the lease would be expiring as at 28th February 2015, but that he would in any case be required to top up arrears of rent. That faced with the prospect of vacating the premises the defendant filed Tribunal Case No. 54 of 2015 at the Business Premises Rent Tribunal which after hearing was dismissed.

4. The application is opposed by the defendant through a replying affidavit sworn by Lameck Oluoch, the defendant on 14th August 2017 in which he deposes inter alia that whereas it is true that they had a landlord-tenant relationship with the plaintiff, he denies that the lease was for 5 years 3 months but was for a term of two years. He states that he was a tenant in the suit premises until December 2015 when the plaintiff illegally distressed and/or evicted him. That he had been served by the plaintiff with a Rent Increment Notice which he disputed and filed a Reference No. 54 of 2015 at the Business Premises Rent Tribunal and was ordered to continue to be in occupancy of the premises and pay the prevailing rent pending hearing and determination of the dispute. That during the pendency of the proceedings at the Tribunal, the plaintiff instructed Peter Simiyu t/a Beyond Auctioneers to levy distress against him and filed Mombasa Rm Misc Civil Application No. 256 of 2015 wherein he obtained exparte orders and proceeded to evict him instead of distressing and did not disclose that there were pending proceedings at the BPRT involving the plaintiff and the defendant.

5. The defendant avers that after the illegal distress/eviction, he moved to court for review of the ex-parte orders and the court on 24th December 2015 directed that he re-enters the suit premises and the plaintiff to return the distressed goods. That the plaintiff appealed to the High Court in HC Misc. Civil Appeal No. 185 of 2015 to set aside the orders which the court allowed but that the defendant filed for review which also was allowed with the court directing that the premises be restored to the defendant and not to be let out to a third party pending heaving and determination of the applications before the High Court. That since then, there have been numerous applications with blatant breach of each and every order, culminating in a ruling made on 17th October 2016.

6. The defendant states that the judgment and order of the Tribunal is not final as he had filed an appeal against the same being Mombasa HCCA No. 50 of 2017 in which the court restrained the plaintiff from evicting the defendant pending hearing and determination of the appeal. He avers that his defence raises various triable issues which ought to be given a chance to be tested at trial. He further avers that he has been paying rent promptly and has no outstanding arrears.

DEFENDANT’S NOTICE OF MOTION DATED 29/11/17

7. The defendant’s application dated 29th November 2017 seeks leave to amend the defence herein and is premised on the grounds inter alia, that while there were proceedings pending at the BPRT, the plaintiff, through Beyond Auctioneers filed MSA CMC Misc No. 256 of 2015 in which he obtained exparte orders to distress but went ahead to evict the defendant from the suit premises and that despite orders of reinstatement, the plaintiff has never complied and instead has leased out the suit premises to a 3rd party. The defendant avers that as a result, the tenancy has been disrupted and has suffered loss and damage which he blames on the plaintiff and wants to claim through the amendment.

SUBMISSIONS

8. The applications were canvassed by way of written submissions. The plaintiff filed submissions dated 4th December 2017 which are only in respect to the Notice of Motion dated 6th April 2017 while the defendant filed his submissions dated 5th March 2018 in respect to both the application dated 6th April 2017 and 29th November 2017.

DETERMINATION

9. I have considered all the issues raised in the applications, the affidavits in support and against, the rival submissions and the case law cited by the parties.

10. The principles which guide the courts in determining an application for striking out pleadings are well settled. In the case of DT Dobie & Company (Kenya) Limited –vs- Muchina [1982] KLR, Madan, JA stated:

i. “…the power to strike out should be exercised only after the court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge. On an application to strike out pleadings, no opinions should be expressed as this would prejudice fair trial and would restrict the freedom of the trial judge in disposing the case.

ii. The court should aim at sustaining rather than terminating suit. A suit should only be struck out if it is beyond redemption and incredible by amendment. As long as a suit can be injected with life by amendment, it should not be struck out.”

11. In the case of Henkel Polymer Co. Ltd & 2 Others [2004] eKLR, J.B Ojwang, J(as he then was) after analyzing several authorities stated as follows:

“from the foregoing review of authorities, it is clear that only very sparingly will any application for the striking out of a statement of defence be entertained … the decision to strike out a defence should not be based on the unlikely success of the defence case.”

In the case of Mukunya –vs- Nation Media Group & Another [2012] eKLR Odunga, J While considering an application such as this stated:

“from the onset I am cognizance of the fact that in an application of this nature the court must avoid the temptation to try the case by way of affidavit evidence.”

12. I will apply this test in the plaintiff’s application herein. In the plaint, the plaintiff’s claim is for vacant possession as well as mesne profits. The defendant has denied the plaintiff’s claim in total. In particular, the defendant avers that at no time did he enter into a lease agreement of 5 years 3 months. It has also come out from the affidavits and pleadings that there have been several proceedings in this matter. The defendant has also made an application to amend his statement of defence to include a counter-claim. Whereas I do not need to go into the merits of those issues, it suffices to state from the pleadings whether the issues are or not triable issues in the sense of the law. The power to strike out pleadings must be sparingly exercised and can only be exercised in clearest of Cases. If a pleading raises a triable issue, even it at the end of the day it may not succeed the matter ought to go to trial. I find that the defence herein raises triable issues. Moreover, the defendant intends to amend it to bring in a counter-claim. I therefore decline to strike out the defence and sustain it.

13. The application dated 29th November 2017 is for amendment. Under Order 8 of the Civil Procedure Rules the court may at any stage of the proceedings allow any party to amend his pleadings. In my view, the application for amendment is merited. Moreover, the same is not opposed.

14. The upshot is that the Notice of Motion dated 6th April 2017 is without merit and is dismissed. The application dated 29th November 2017 is allowed. The defendant to file and serve his amended defence within 14 days from the date of this ruling.

Each party to bear their own costs.

It is so ordered.

Dated delivered and signed at Mombasa this 8th day of May 2018.

_________

C. YANO

JUDGE