[2007] KEHC 54 (KLR)
The court found that the ex parte orders obtained by the landlord were granted on the basis of concealment and misrepresentation of material facts, specifically the existence of ongoing proceedings and restraining orders from the Business Premises Tribunal. The court emphasized that jurisdiction over such disputes...
Source-derived case information.
- Citation
- [2007] KEHC 54 (KLR)
- Parties
- Applicant: Peter Njiru Njagi; Respondent: Felistus Wambui Kathara
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 7 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Application by tenant allowed; ex parte orders set aside; costs to tenant.
- Legal Topics
- Landlord Tenant Disputes, Business Premises Tribunal Jurisdiction, Ex Parte Orders, Material Non Disclosure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Njiru Njagi
Applicant
Felistus Wambui Kathara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders for breaking and attachment were obtained through material misrepresentation or concealment of facts.
- 2 Whether the High Court had jurisdiction to determine the dispute or if it was reserved for the Business Premises Tribunal under Cap. 301.
- 3 Whether the tenant was entitled to have the ex parte orders set aside.
Ratio Decidendi
The court found that the ex parte orders obtained by the landlord were granted on the basis of concealment and misrepresentation of material facts, specifically the existence of ongoing proceedings and restraining orders from the Business Premises Tribunal. The court emphasized that jurisdiction over such disputes is conferred by statute on the Tribunal, not the High Court. As the tenant had not vacated the premises and had already sought and obtained relief from the Tribunal, the landlord's application was improper. The court exercised its inherent powers to set aside the ex parte orders and directed that the dispute be resolved by the Tribunal, where proceedings were already pending.
Court Disposition
Application by tenant allowed; ex parte orders set aside; costs to tenant.
Orders
- The application by the tenant dated 9/2/2007 is allowed.
- The ex parte orders granted on 31/1/2007 are set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Misc. Appli. 7 of 2007
PETER NJIRU NJAGI…………………………………………….APPLICANT
VERSUS
FELISTUS WAMBUI KATHARA………………….................RESPONDENT
RULING
On 15/1/2007 the Landlord approached the court with an exparte application seeking orders for breaking premises on plot No. 11 Embu Municipality. He made allegation in his affidavit that he had instructed Advocate to levy distress against the property of the tenant. That the tenant chosed the premises to avoid attachment and therefore he needed breaking order to continue with attachment. The landlord exhibited photographs showing that the premises were locked. There was no mention of Tribunal proceedings taken in Business Premises Tribunal by the tenant. After the orders were granted and goods taken by auctioneer. The tenant came to court by Notice of motion dated 9/2/2007 praying that the order granted on 31/1/2007be set aside together with proclamation against goods. The tenant stated that the orders granted on 31/1/07 were obtained through material misrepresentation of facts and falsehoods by the landlord which did circumvent orders of Tribunal given on 26/1/2007 restraining the Landlord from harassing the Tenant. This court heard the application Ex parte and invoked the inherent powers of court to set aside orders of 31/1/2007. The matter has come today for hearing inter-parties.
I have considered the submissions of Mr. Muturi for Applicant Tenant. I have also considered submission made by Mr. Njue for Landlord. I find that orders complaint of were granted and obtained by concealment of material facts. I am convinced by the argument of the Tenant that it is not true that the Tenant had vacated the premises as alleged by the landlord. At that time she had already filed complaint to the Tribunal and from what her Counsel says she had obtained orders on 26/1/2007 against the landlord. In short she had filed suit against landlord and it is unbelievable that she would voluntarily vacate the premises while her suit is tribunal.
I believe what she has stated in her sworn affidavit. The Counsel for tenant says that the Tribunal proceedings are still in progress not terminated yet.
I have to emphasize that the jurisdiction to settle the disputes in Business Premises is entrusted by Parliament to Tribunal established under Cap. 301.
In the premises I allow the application by tenant dated 9/2/2007 with costs to tenant applicant. Thus I confirm the order I granted on exparte basis. This dispute must be dealt with in the Business Tribunal where there is already a suit filed.
Orders accordingly.
29th Jan2007
J. N. KHAMINWA
JUDGE