Wendz wrote:maka wrote:dunkang wrote:The contract period had expired and KAA had no obligatin to renew it. Kamlesh obtained a court order but did not furnish the KAA with it on time before demolision tnok place(12AM 31st July 2013)
@Maka, seriously speaking, how comes your legal arguments are always wrong in this forum. Am not hating or something like that, but i have noted that you are always 'giving legalish' advices and comments but all comes out as wrong. Are you a lawyer or law student?
I have duly noted I am always wrong will definetly work on this,thank you for pointing it out...everyday is a learning process atleast you have given me the reason to work even.harder...
My ALWAYS wrong thoughts...
There is no provision in law that allows one to forcibly evict third parties not party to a lease agreement. I
f a lease expires by effluxion of time the Tenant is supposed to vacate and if that Tenant is a head tenant the landlord must issue a simultaneous single notice to the tenants in possession. To evict one must have a Court order and authorities/precedent on this abound in our Courts all the way to the Court of Appeal. In the Duty Free case Pattni became, at the stroke of midnight, what we call in law a "hold-over" tenant that is a person who though initially in rightful possession of property as a Tenant, wrongfully and without the landlord's consent, remains on the property after the term of their lease has expired. This type of tenancy is also called a " tenancy at sufferance". In Kenya we do not have what are called "self help" evictions. ONE MUST FOLLOW THE JUDICIAL PROCESS to obtain an eviction order. There are no two ways about it. KAA had two options when it comes to dealing with Pattni: Accept him as a tenant for a new lease term, or treat him as a trespasser and seek eviction. Once KAA chose a course of action, they were bound to it and could not seek another remedy. They had to obtain an order for eviction. As far as service of the order is concerned please read the reported case: Daniel Murigi vs Kenya Railways Corporation (Nyamu J). It is evident KAA evaded service and depending on the singular facts of a case they can be cited for contempt. Finally ALL the sub tenants have causes of action for the damage caused to their items
So, @maka, legally speaking, what is the remedy for a landlord whose tenant keeps running to the court not to be evicted every time the lease comes to an end? Doesn't the owner of the property have a right to decline renewing the lease or is it automatic? We know the agreement between Pattni and KAA was unfairly and "corruptly" entered into, so, what options does KAA has to get back the shops and let them at a fair market rate? Is there a way KAA can obtain eviction orders prior to expiry of the lease to be effective after the lease expires? Is there a way of beating the system "albeit crudely" - read
desperate measures.
I feel for the people who were working there and their families but i have no love lost with Pattni... I really hope KAA wins this one.
What was in the Sunday Nation today is what @Dunkang was alluding too when he said all the legal statements I have made have been wrong ever since I joined wazua...
The tenant who is that foolish to seek judicial intervention will quickly learn that it can't be done in perpetuity.
He will eventually after he goes through the judicial system to the highest Court in the land-the Court of Appeal (that is if he reaches there to begin with) and loose have to pay not only costs of the cases that he has instituted but will also cover costs of eviction.
In any event an injunction under Order 40 of the Civil Procedure Rules is only granted in the first instance for 14 days and can only be extended only once.
If a Tenant files multiple suits you simply apply the res judicata rule in Sections 6 and 7 of the civil Procedure Act and the subsequent suit will be a nullity.
Remember in any event that Tenant will be required in most instances to deposit the rent in Court or pay to the Landlord so the Landlord will not lose out.
For business Premises it gets even better, you move the Business Premises Tribunal.
The only reason KAA illegally threw Pattni out is so as not to come under the confines of CAP 301 the Landlord and Tenant Act.
One may hate Pattni but that is no excuse for circumventing the law. A court order is required to conduct an eviction. We have no self help evictions in Kenya and that is the law
I would start by hauling the MD of KAA a statutory body for breaking the law whilst simultaneously interrogating the manner in which the contract with Pattni was entered into.
The statement that the Contract "was unfairly and corruptly" entered into" is a dangerous statement to make when I can bet you have not even looked at that contract. In law a contract is recognised when parties with equal bargaining power execute it. Don't just blame Pattni, that is self serving. Who in KAA and Government signed?
To answer your last question, no you cannot apply for an eviction before the fact. You will be laughed out of Court
possunt quia posse videntur