Bachelor’s Bakery Ltd v Westlands Securities Ltd [1982] KECA 2 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a written lease agreement for over five years is valid without registration and creates an uncontrolled tenancy outside rent tribunal protection.
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 written Agreement for Lease dated September 11, 1969 for a six-year term, not registered, created a six-year tenancy or only a monthly tenancy under section 106 of the Transfer of Property Act
- 2.Whether the tenancy was a 'controlled tenancy' under section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, so that the Business Premises Rent Tribunal had exclusive jurisdiction
- 3.Whether the respondent was entitled to summary judgment for possession and for Kshs 5,623.40 in respect of rent arrears, water, conservancy charges and site value rates
Key legal issues
#Effect of non-registration of a lease created under a written agreement for lease
The agreement is a contract to the contrary within section 106 of the Transfer of Property Act, valid inter partes without registration though giving no protection against third parties.
Proviso (e) to section 4 of the Registration of Documents Act exempts documents merely creating a right to obtain another document. The parties acted on the agreement as a binding contract; the tenant questioned its validity only after the six-year term had expired. Grosvenor v Rogan-Kamper supports the position.
Whether the tenancy was a controlled tenancy within Cap 301
No. The written agreement for a term exceeding five years takes the tenancy outside the Act's definition of a controlled tenancy.
The definition of 'controlled tenancy' excludes tenancies reduced into writing for a period exceeding five years, and 'tenancy' includes one created by a tenancy agreement. The Act, as protective special legislation, allows parties to opt for an uncontrolled tenancy.
Entitlement to summary judgment for the sum of Kshs 5,623.40
Summary judgment was rightly entered; the onus was on the appellant to prove discharge of liability for rates and charges and it failed.
Rent for the last 14 days was clearly due and unpaid. The appellant claimed to have paid water, conservancy and site value rates but produced no receipts or exhibits and made no application for cross-examination of the respondent on affidavit.
Legal principles established
#- A specifically enforceable written agreement for lease for a term exceeding five years is valid inter partes without registration and creates an uncontrolled tenancy outside the Landlord and Tenant Act, notwithstanding section 107 of the Transfer of Property Act.
- The Landlord and Tenant Act, as later special legislation, prevails over the Transfer of Property Act to the extent of conflict and does not assume jurisdiction over tenancies contracted in writing for terms exceeding five years.
- Section 106 of the Transfer of Property Act does not deem an unregistered lease a monthly tenancy where the parties have agreed in writing on the period of the lease.
Court orders
#- 1.Appeal dismissed with costs
- 2.No certificate for two advocates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment. Held that a written agreement for lease for a term exceeding five years is a contract to the contrary under section 106 of the Transfer of Property Act, valid inter partes without registration, creating an uncontrolled tenancy outside the Landlord and Tenant Act; summary judgment for possession and Kshs 5,623.40 rightly entered. Dismissed the appeal with costs and would not certify for two advocates.
In my view Mr Gautama's submissions are correct and must prevail.p. 2
Wrote the judgment
Separate concurring judgment agreeing with Law JA. Reasoned that the Landlord and Tenant Act, being later legislation for the protection of tenants, sets up a new mode of creating a valid tenancy for a term exceeding one year by a specifically enforceable written agreement without registration, and that Rogan-Kamper v Grosvenor (CA No 33 of 1976) was decided on its own facts and is 'best laid to rest, and not followed'.
It is best laid to rest, and not followed. Potter JA also agreeing, the appeal is ordered to be dismissed with costs.p. 5
- On appeal from
- High Court of Kenya at Nairobi
- Not stated
- Jurisdiction invoked
- First appeal to the former Court of Appeal (not stated by provision in the judgment text)
Relief refused
#Certificate for two advocates
Mr Khanna appeared alone for the appellant
Costs
The appeal is dismissed with costs to the respondent.
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.
In my view Mr Gautama's submissions are correct and must prevail.
Such an agreement is valid inter partes even in the absence of registration, although it gives no protection against the rights of third parties, see Grosvenor v Rogan-Kamper (supra).
It is best laid to rest, and not followed. Potter JA also agreeing, the appeal is ordered to be dismissed with costs.
Issues in the judgment
#The case title and party names are not stated anywhere in the judgment text provided; only the roles (plaintiff/defendant, appellant/respondent) appear.
The spelling of the East African case name is inconsistent within the judgment (Chogley vs Choglay).
The date of the contract in Rogan-Kamper v Grosvenor is given inconsistently as September 29, 1969 in one passage and June 29, 1969 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bachelor’s Bakery Ltd v Westlands Securities Ltd [1982] KECA 2 (KLR)", Case Analysis (1982). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/2/eng@1982-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.