Confusion as two Mombasa judges issue contradicting orders on same matter

Two judges have issued clashing orders involving the occupancy of a motor vehicle yard.

The yard was first rented to Al Riaz International Ltd in 2003, years before the landlord, Ganjoni Properties Ltd, increased the rent from Sh360, 000 to Sh600,000 in 2015 on expiry of the lease.

Al Riaz immediately contested the increased rates and sought court orders barring the landlord from evicting them. Justice PJ Otieno granted the orders.

Three years later, in January 2018, the landlord evicted Al Riaz citing non-payment of rent.

Fuji Motors Ltd then hired the property on January 17. In the same month, Al Riaz went to back to court seeking to return to the property.

Fuji Motors went to court seeking orders to stay on.

The result was two different court orders for the same property.

On January 31, 2018, Justice Charles Yano of the Environment and Lands Court issued orders stopping the eviction of Fuji Motors.

But on February 9, Justice Otieno ordered the reinstatement of Al Riaz on the premises.

Stopping interference

Yesterday, the two judges once again issued clashing orders as Justice Yano extended his orders stopping any interference with Fuji Motors.

On the same day, Otieno summoned the Central Police OCS, seeking an explanation for why Al Riaz had not been reinstated.

Meanwhile, both judges stuck to their orders.

“I extend the interim orders issued on January 31, 2018. I cannot order a status quo since there has been interference in my earlier orders,” said Yano.

Meanwhile Ganjoni Properties has filed an appeal contesting Otieno’s order barring them from evicting Al Riaz from the premises.

The landlord claimed that Al Riaz, who has been his tenant for more than 15 years, had refused to pay Sh13 million in three years' accrued rent.

Ganjoni Properties lawyer Damaris Muyaa said Otieno’s orders did not stop Al Riaz from paying or the landlord from recovering rent, and that the orders issued were in respect to the yard, not the showroom where Fuji Motors parked their vehicles.

The court heard that Ganjoni Properties sent auctioneers to evict Al Riaz and confiscated more than 48 vehicles valued at more than Sh100 million and sold them off.

Al Riaz told the court they had already paid Sh8 million owed to Ganjoni Properties, and that the value of vehicles auctioned during the eviction was way above the debt owed to the landlord.

Al Riaz's lawyers DM Ngonze and Michael Oloo told Yano that the conflicting court orders arose because Ganjoni Properties had failed to disclose Otieno’s orders to Al Riaz.

Different decision

“Had the case before Justice Otieno been disclosed before you, for ex-parte orders, you would have arrived at a different decision considering the matter was before another competent jurisdiction,” said Mr Oloo.

Mr Ngonze said Ganjoni Properties had an occupancy lease prepared for Fuji Motors when they knew of the existing orders from Justice Otieno.

“The orders ought to be discharged and Fuji Motors and Ganjoni Properties investigated and punished for misleading this court,” said the lawyer.

Fuji Motors' lawyer Willis Oluga argued that his clients should be allowed to run their business from the premises because they had paid rent and were not part of the dispute between the landlord and Al Riaz.

“When my clients took over the premises on January 18, 2018, the showroom was vacant. It is in the interests of justice that they are allowed to use the premises” said Mr Oluga.

He said any orders by Justice Otieno could not be binding to his client because the firm was not party to the civil suit between Ganjoni Properties and Al Riaz.

He said his client would suffer irreparable damage because he had hundreds of motor vehicles on the premises and had no alternative equivalent if he was evicted.

“He will lose his customers,” said Oluga.