Dolat Karim Waljee v S Rose [1976] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a landlord cannot evict a protected tenant through the courts—the rent tribunal, not a lawsuit, controls those tenancies.
What this practically means
#Executive summary
#Key legal issues
#Termination of a controlled tenancy
A controlled tenancy cannot be terminated except under the Act; the tribunal under the Act, not the ordinary courts, terminates the tenancy.
Section 4 of the Act provides that no controlled tenancy shall terminate or be terminated otherwise than in accordance with the Act. Death of the tenant does not terminate it; it vests in the estate. Abandonment or surrender would also amount to termination, and none was established. Even the month-to-month tenancy pleaded in favour of Dar's sons was never shown to have been terminated. The tribunal under the Act has jurisdiction, including under section 12(1)(e), over persons in occupation of premises in a controlled tenancy.
Reversioner's right of action in trespass
A landlord who is not in possession cannot sue an occupier in trespass without pleading and proving actual damage to the reversion, and then only for damages, not possession.
Where there is an intermediate sub-tenant between the lessor and the occupier, the lessor is a reversioner. The appellant was in occupation through or under the estate or Dar's sons, so she was not a trespasser vis-à-vis the respondent. No damage to the reversion was pleaded or argued, and the action was for possession, not damages.
Legal principles established
#- A controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act can only be terminated in accordance with the provisions of that Act.
- A tenancy does not determine automatically on the death of the tenant but vests in his legal personal representatives.
- A lessor without possession cannot maintain an action in trespass against an occupier without proof of actual damage to the reversion; and such an action lies for damages only, not possession.
Court orders
#- 1.Appeal allowed with costs
- 2.Order of the High Court requiring the appellant to vacate the premises and pay mesne profits set aside
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction over an order of the High Court of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dolat Karim Waljee v S Rose [1976] KECA 6 (KLR)", Case Analysis (1976). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1976/6/eng@1976-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.