East African Power and Lighting Co Ltd v Attorney General [1978] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that occupying premises with rent paid creates a monthly tenancy that only written notice can end, awarding landlords far more compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What relationship existed between the appellants and the Government in relation to the twelfth floor of Electricity House?
- 2.Was the Government entitled to terminate that relationship?
- 3.If yes, was the Government required to give notice in writing to terminate it?
- 4.If yes, was any valid notice of termination given?
- 5.If not, was there nevertheless a valid termination?
- 6.If there was a tenancy, was there any valid surrender of it?
- 7.What sum, if any, was due to the appellants from the Government?
Key legal issues
#Whether the relationship between the parties was a tenancy at will or a monthly tenancy
It was a monthly tenancy under section 106 of the Transfer of Property Act, terminable by fifteen days' written notice, which was never given.
The correspondence established an agreement for a six-year lease of ascertained premises at an agreed rent; the Government took possession through the NSSF and rent was paid and accepted. In the absence of a contract to the contrary, section 106 deems such a letting to be a monthly tenancy. Courts lean against construing demises as tenancies at will; a clear intention to create one is required, which was absent here.
Whether the trial judge was right that there was a valid surrender by handing keys to the appellants' watchman
No; the judge misdirected himself because the watchman had no ostensible authority to accept a surrender on the appellants' behalf.
A person cannot hold himself out as another's agent so as to bind that other; it is the principal who must hold the person out as having express or ostensible authority. Mr Ogot was a watchman and cleaner, never held out by the landlords as authorised to accept surrender of a tenancy, so the handing over of keys to him could not effect a surrender.
Legal principles established
#- Possession with the landlord's consent followed by payment and acceptance of rent results in a monthly tenancy under section 106 of the Transfer of Property Act, terminable only by written notice.
- A tenancy at will can exist in Kenya only where expressly agreed; it cannot be implied.
- Ostensible authority must be conferred by the principal; a person cannot confer it on himself, and a watchman lacks authority to accept surrender of a tenancy.
Court orders
#- 1.Appeal allowed with costs
- 2.Judgment and decree appealed from altered by increasing the amount awarded from Shs 3,143/05 to Shs 133,870/25
- 3.Costs of the increased award on the higher scale with interest at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment holding that the relationship was a monthly tenancy under section 106 of the Transfer of Property Act, not a tenancy at will; a tenancy at will can exist in Kenya only by express agreement; the appeal was allowed and the award increased.
I am accordingly of the view that this appeal succeeds and should be allowed, with costs.p. 5
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the High Court (not expressly stated in the judgment)
Relief refused
#Implied tenancy at will advanced by the respondent
A tenancy at will cannot be implied in Kenyan land law; it can only exist by express agreement
Costs
Appeal allowed with costs; increased award to carry costs on the higher scale and interest at court rates.
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 accordingly of the view that this appeal succeeds and should be allowed, with costs. I would alter the judgment and decree appealed from by increasing the amount awarded to the appellants from Shs 3,143/05 to Shs 133,870/25, with costs on the higher scale and interest at court rates.
Possession by a tenant with the consent of the landlord followed by payment and acceptance of rent results, in the absence of a contract or local law or usage to the contrary, in a letting governed by the provisions of section 106 of the Transfer of Property Act.
My own view is that a tenancy at will can only exist in Kenya when it results from an express agreement to create such a tenancy, and there is no room for the implication of a tenancy at will in the land law of Kenya.
To incur liability for the acts of another, it must be the principal who holds the other person out as having his authority, express or ostensible.
The word “lease” in that context does not mean a concluded or formal lease. It means a letting.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Power and Lighting Co Ltd v Attorney General [1978] KECA 3 (KLR)", Case Analysis (1978). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1978/3/eng@1978-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.