[2013] KEHC 3935 (KLR)
The court found that the applicant had failed to establish any of the grounds required for review under Order 45 of the Civil Procedure Rules. The mere continued payment and receipt of rent did not override the existing eviction orders from the Business Premises Rent Tribunal, especially in the absence of a stay or...
Source-derived case information.
- Citation
- [2013] KEHC 3935 (KLR)
- Parties
- Appellant: Saleh Awadh Salim (as administrator of the estate of the late Hassan Awadh); Respondent: Abdalla Said Bakarat; Respondent: Barakat Said Barakat
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 130 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Order
- Outcome
- application dismissed with costs to the respondents
- Judges
- JV Juma
- Legal Topics
- Review of Court Orders, Landlord Tenant Disputes, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saleh Awadh Salim (as administrator of the estate of the late Hassan Awadh)
Appellant
Abdalla Said Bakarat
Respondent
Barakat Said Barakat
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Order
Legal Issues
- 1 Whether the applicant has established grounds for review of the court's ruling/order of 18th October, 2012.
- 2 Whether continued payment and receipt of rent establishes a landlord/tenant relationship despite existing eviction orders.
- 3 Whether the application amounts to an abuse of court process.
Ratio Decidendi
The court found that the applicant had failed to establish any of the grounds required for review under Order 45 of the Civil Procedure Rules. The mere continued payment and receipt of rent did not override the existing eviction orders from the Business Premises Rent Tribunal, especially in the absence of a stay or successful appeal. The court held that the application was a disguised attempt to obtain a stay of execution after such relief had already been denied, amounting to an abuse of court process. Consequently, the application for review was dismissed in its entirety, with costs awarded to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 9th November, 2012 is dismissed in its entirety.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Civil Appeal 130 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
SALEH AWADH SALIM (as administrator of the estate of the late
HASSAN AWADH……..………..……..……..…….………….APPELLANT
VERSUS
1. ABDALLA SAID BAKARAT
2. BARAKAT SAID BARAKAT…………………....….……RESPONDENTS
RULING
By this notice of motion dated 9th November, 2012 the applicant prays inter alia,
“2. THAT this Honourable court be pleased to review its ruling/order of 18th November, 2012 herein”.
The application was supported by the affidavit of the applicant sworn on 9th November, 2012.
The application was disposed of by way of written submissions. The order/ruling which is sought to be reviewed is the one delivered by Hon. Justice Mwera on 18th October, 2012.
As a general rule a ruling of a court may be reviewed and/or set aside on two main grounds:
(1)Error apparent on the face of the record.
(2)Discovery of new evidence.
The applicant on his submissions argues that the fact that he has continued to pay and the respondents have continued to receive rent means that a Landlord/Tenant relationship exists between the two. This is despite the existence of orders given by the Business Premises Rent tribunal entitling the respondents to evict the applicant. Surely the applicant could not have expected to stay in the premises ‘gratis’. Having obtained orders from the Business Premises Rent Tribunal and there being no stay and/or successful appeal, the respondents retains the right to execute the same at any time. I have read the ruling of Hon. Justice Mwera in which he dismissed the applicant’s prayer for a temporary stay pending appeal. Having failed to get orders of stay pending appeal the applicant is trying to use this application to obtain similar orders from this court. This amounts to an abuse of court process which this court will not entertain. No basis has been laid for a review and none is merited.
I hereby dismiss this application in its entirety and award the costs to the respondents.
Dated and delivered in Mombasa this 29th day of April, 2013
M. ODERO
JUDGE
In the presence of:
No appearance by Applicant
Mr. Omwenga for Respondents
Court Clerk Mutisya
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