Anwar Mohamed Bayusuf Limited v New Ocean Transport Limited & another [2014] KEELC 358 (KLR)
The bottom line
#A Kenyan land court ruled that a dormant appeal left unprosecuted for six years cannot shield an occupant from eviction off a registered owner's plot.
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 applicant is entitled to a temporary injunction restraining the defendants from impeding access to Plot No. 194/VI/Mainland North
- 2.Whether the applicant is entitled to an order of eviction of the defendants from the suit premises
- 3.Whether the pendency of appeal No. 174 of 2008 and the stay of execution issued therein bars this application
- 4.Whether the court has jurisdiction over the matter under the Environment and Land Court Act
Key legal issues
#Whether the pending appeal and stay of execution in High Court Civil Appeal No. 174 of 2008 should bar the injunction and eviction orders
The appeal was being abused as a shield; the second defendant had deliberately failed to prosecute it for over six years, so it could not protect the tenancy indefinitely.
Under Order 42 rule 11 and Section 79B of the Civil Procedure Act, an appeal must be admitted within strict timeframes and listed for directions. The court called for the file and found the appeal had never been listed before a Judge in over six years. The applicant was not a party to the appeal, had received no rent, and could not be blamed for the delay. The second defendant had no intention of prosecuting the appeal, using it selfishly to retain possession. The court held that allowing the application was necessary to prevent blatant abuse of court process.
Whether the court has jurisdiction to grant the relief sought
The court held it has jurisdiction under Section 13(5) of the Environment and Land Court Act 2012, rejecting the respondent's objection.
Counsel for the respondent argued that the court lacked jurisdiction to entertain the matter. The judge rejected this, holding that the Environment and Land Court is vested with jurisdiction over disputes concerning land under Section 13(5) of the Environment and Land Court Act 2012, and thus could grant both the injunction and eviction orders sought.
Whether granting the application would effectively determine the suit
The court acknowledged it would be determining the suit but held this was justified to prevent abuse of process.
The judge was alive to the fact that the plaint sought the same relief as the motion, and that allowing the application would amount to determining the suit. Nevertheless, he considered this necessary to prevent the blatant abuse of the court's process by the second defendant, who had refused for six years to have the protective appeal admitted for hearing.
Legal principles established
#- It is the parties to an appeal who bear the duty and legal obligation to move the court to have the appeal prepared and listed for hearing, and no one else.
- An appeal that has lain dormant in the registry for years cannot be used as a shield to abuse the process of the Court and prevent the registered owner's enjoyment of his land.
- A finding of the Business Premises Rent Tribunal that no tenancy exists stands until the High Court overrules it on appeal.
- The Environment and Land Court has jurisdiction over such disputes under Section 13(5) of the Environment and Land Court Act 2012.
Court orders
#- 1.An ex parte temporary injunction restraining the defendants from impeding or preventing the plaintiff from accessing and entering Plot Number 194/VI/Mainland North
- 2.An order of eviction against the defendants jointly and severally, by themselves, their agents or servants, to quit and vacate the suit premises with all their belongings, cease trespassing and hand over vacant possession
- 3.Costs of the application to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13(5) of the Environment and Land Court Act 2012
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.
I am on the whole convinced that on the balance of convenience the plaintiff is entitled to the prayers sought. I grant him the orders sought in the application with costs.
New Ocean Transport Ltd the 1st defendant, is using the appeal as a shield. It is abusing the process of the Court and preventing the applicant the user and enjoyment of his land.
It is the parties to that appeal that have a duty and a legal obligation to move the court and no one else.
The Business Premises Tribunal found in 2008 that there was no tenancy between New Ocean Transport Ltd the 1st defendant, and M.A. Bayusuf & Sons. This remains so until, the High Court overrules that decision.
Issues in the judgment
#The numbering of the defendants is inconsistent throughout the judgment - New Ocean Transport Co. Ltd is referred to as both the 1st and 2nd defendant, and M.A. Bayusuf & Sons Ltd as both the 1st defendant (landlord) and 2nd defendant.
The application date is inconsistently rendered as '1th March, 2014'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anwar Mohamed Bayusuf Limited v New Ocean Transport Limited & another [2014] KEELC 358 (KLR)", Case Analysis (2014). Notice of Motion dated 1st March 2014 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/358/eng@2014-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.