Mohamed Mohamed Hatimy v Lameck Olouch t/a Lamathe Hygenic Foods [2019] KECA 875 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a tenant couldn't keep defending his continued occupation after a tribunal found his lease had expired, granting the landlord vacant possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly exercised his discretion in declining to allow the appellant's application to strike out the respondent's statement of defence
Key legal issues
#Whether the ELC Judge erred in declining to strike out the respondent's defence on vacant possession given the BPRT finding that the tenancy was not a controlled tenancy
The Judge erred; the BPRT finding that the tenancy was governed by a 5 years 3 months lease had not been set aside, so the defence on continued possession was frivolous and was struck out with judgment entered for vacant possession.
The BPRT had expressly found no controlled tenancy relationship existed, the tenant having executed a 5 years 3 months lease. Although an appeal against that decision was pending, no court had set it aside. The respondent's defence therefore raised no substantial question on tenancy or vacant possession. The Court interfered with the Judge's discretion only to that extent, leaving mesne profits and the counter-claim to full trial.
The standard for appellate interference with a judge's discretionary decision
The Court approached interference with caution, applying the established Madan, JA criteria and interfering only because the Judge's decision was plainly wrong on the vacant possession issue.
As the first appellate court, it was not open to the Court to oust the Judge's discretion and substitute its own merely because it would have weighed factors differently. Interference is warranted only on the five established grounds. Here the Judge failed to give effect to an unimpeached tribunal finding that disposed of the only defence to vacant possession, amounting to error justifying intervention on that issue alone.
Legal principles established
#- The power to strike out pleadings is discretionary and should be exercised sparingly and only in the clearest cases, balancing the right to a full trial against the right not to be burdened with a hopeless suit.
- An appellate court will only interfere with a discretionary decision of a judge on the established grounds of misdirection in law, misapprehension of facts, wrong considerations taken or omitted, or a plainly wrong decision.
- A pleading is frivolous where it is without substance, groundless or fanciful, and where there is no plausible defence a trial would be pointless.
Court orders
#- 1.The respondent's defence with respect to the prayer for vacant possession is struck out
- 2.Judgment entered granting the appellant vacant possession of the suit premises
- 3.The respondent's counter-claim and the appellant's prayer for mesne profits directed to the Environment and Land Court for full trial
- 4.Costs of the appeal and of the striking-out application in the Environment and Land Court to abide the outcome of the determination of the appellant's prayer for mesne profits and the respondent's counter-claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- E.L.C No. 278 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court under the Civil Procedure Act and the Appellate Jurisdiction Act (not expressly cited in the judgment; appeal from ruling in ELC No. 278 of 2017)
Relief refused
#Striking out of the entire statement of defence and entry of judgment in the terms of the plaint
Only the defence on vacant possession was found frivolous; the counter-claim and mesne profits required a full trial on evidence
Costs
Costs of this appeal as well as for the application for striking out the defence in the Environment and Land Court shall abide by the outcome of the determination of the appellant’s prayer for mesne profits and the respondent’s counter-claim.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In as much as the power to strike out pleadings by a court is discretionary, it should be exercised sparingly and only in the clearest cases.
we find that the learned Judge erred in declining to strike out the respondent’s defence and entering judgment in favour of the appellant with regard to vacant possession of the suit premises.
The upshot of the foregoing is that the appeal herein succeeds and is hereby allowed to the extent hereinabove stated. Costs of this appeal as well as for the application for striking out the defence in the Environment and Land Court shall abide by the outcome of the determination of the appellant’s prayer for mesne profits and the respondent’s counter-claim.
Issues in the judgment
#The judgment quotes the BPRT order as describing the lease as dated 16th November, 2010 while the narrative earlier records the lease as executed on 16th March, 2010 - an internal inconsistency in the dates of the lease.
The judgment is dated and delivered on 7th March, 2019 while the coram heading records the appeal as of 2018; no contradiction, but the decision date is from the delivery clause rather than the header.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Mohamed Hatimy v Lameck Olouch t/a Lamathe Hygenic Foods [2019] KECA 875 (KLR)", Case Analysis (2019). Civil Appeal No. 93 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/875/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.