Trikam Maganlal Gohil another v John Waweru Wamai [1983] KECA 53 (KLR)
The bottom line
#Kenya's Court of Appeal ruled tenants must provide real evidence of a defence, not bare denials, before landlords' possession claims go to full trial.
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 learned judge was right to dismiss the appellants' application for summary judgment and give the respondent unconditional leave to defend
- 2.Whether the tenancy of the store, or any part of it, was a controlled tenancy within the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301) or the Rent Restriction Act (cap 296)
- 3.Whether the appellants were estopped from denying the premises were controlled by reason of the rent card issued to the respondent
- 4.Whether the monthly rental value of the store for mesne profits was Kshs 1,865.50
- 5.How costs of a summary judgment application should be dealt with under Order XXXV rule 8
Key legal issues
#Whether the store or either part of it was a controlled tenancy under cap 301 or cap 296
The store, and either part of it, was not occupied by the respondent wholly or mainly for his retail or wholesale trade or business, so the tenancy was not controlled and the notice to quit was in proper form and the claim properly before the High Court.
The definition of 'shop' under the Act turns on occupation wholly or mainly for trade, business or rendering services. Uncontradicted affidavit evidence showed the respondent did not occupy one part, having let it to Scientific Industrial Services, and probably used the other part as an illegal dwelling. The respondent's vague assertion that shop and store were one unit did not answer the occupation question, so the onus-bearing tenant failed.
Estoppel from the rent card
The appellants were not estopped from alleging the premises were not controlled; a statement in a rent book, if a representation, was one of law and not of fact and cannot found an estoppel.
Following English authority, a representation as to the legal character or status of premises is a representation of law, on which no estoppel can arise, even though the tenant acted to his detriment by not seeking other premises. The plea should have been rejected despite the authorities not having been cited below.
The correct disposal of a summary judgment application where triable issues are alleged
The judge erred in dismissing the application outright; the correct course was to consider whether the defence raised triable issues and, if so, grant conditional or unconditional leave with costs in the cause or reserved, since dismissal is only permissible under rule 8(2).
Under Order XXXV rule 2 the defendant must show by affidavit, oral evidence or otherwise a genuine or arguable defence; here the replying affidavit and defence disclosed no triable issue, being bare denials and irrelevancies. Had leave been appropriate, the application should not have been dismissed because it would cease to exist and consequential orders could not be made.
Monthly rental value of the store
The respondent failed to discharge the onus of disputing the appellants' valuation of Kshs 1,865.50 a month for mesne profits, offering nothing more than a bare denial.
The applicant's valuation by a qualified valuer stood uncontradicted by any substantive evidence from the respondent, whose mere denial that the figure was correct could not raise a triable issue on the quantum of mesne profits.
Legal principles established
#- An application for summary judgment under Order XXXV should not be dismissed merely because triable issues exist; dismissal is reserved to the rule 8(2) cases, and otherwise leave to defend should be granted with costs in the cause or reserved.
- On a summary judgment application the defendant bears the onus of showing by affidavit or otherwise that his defence raises bona fide triable issues; bare denials in a pleading or letter will not suffice.
- Whether premises are a controlled 'shop' depends on the nature of their occupation and use at the relevant date, not on how or when they were let; a statement in a rent card is a representation of law and cannot found an estoppel.
Court orders
#- 1.Appeal allowed
- 2.Decision of the High Court set aside
- 3.Respondent ordered to give possession of the entire store, subject to the rights of Messrs Scientific Industrial Services
- 4.Mesne profits of Kshs 1,865.50 a month from November 1, 1980 until possession is delivered up, with interest at 12% a year from the date of the plaint until payment
- 5.Costs of the suit and of the application for summary judgment, with interest at 12% a year from the respective dates, and costs of the appeal, awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Kneller JA delivered the principal judgment. He held that the store, or either part of it, was not premises occupied wholly or mainly for the respondent's retail or wholesale trade or business, so the tenancy was not controlled under either the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act or the Rent Restriction Act; that estoppel could not arise from a rent-card statement of law; and that the respondent's bare denials did not discharge the onus of raising triable issues. The judge below erred in dismissing the summary judgment application and granting unconditional leave to defend.
The answer to the first important issue was, therefore, that the respondent's tenancy of this store or either part of it was not a controlled one within the meaning of the phrase in either Act.p. 3
Wrote the judgment
Law JA added a short concurring opinion on the summary procedure under Order XXXV, holding that an application for summary judgment should only be dismissed if it falls within rule 8(2); where triable issues are found, the court should grant conditional or unconditional leave to defend with costs in the cause, not dismiss the application.
In all other cases, such as this one, the application should not be dismissed. If triable issues are found to exist, summary judgment should be refused, and an order made granting unconditional or conditional leave to defend, with an appropriate order as to the costs of the application, which would normally be dealt with at the trial.p. 4
Wrote the judgment
Chesoni Ag JA agreed in full with Kneller JA's draft judgment, adding that the test under the controlled-tenancy legislation is the nature of occupation at the date of the hearing, that the onus lies on the defendant under Order XXXV rule 2(1) to show a genuine or arguable defence, and that neither the replying affidavit nor the defence disclosed any triable issue.
The test is not how or when the premises were let, but the nature of occupation at the date of hearing of the application ie what were the premises being wholly or mainly used or occupied for at the date of the hearing?p. 4
- On appeal from
- High Court of Kenya, Nairobi
- Civil Suit 3575 of 1980
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a High Court interlocutory decision on an application for summary judgment under Order XXXV of the Civil Procedure Rules
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.
The answer to the first important issue was, therefore, that the respondent's tenancy of this store or either part of it was not a controlled one within the meaning of the phrase in either Act. It follows that the notice to quit was in proper form and the application was made in the proper forum.
such a statement in a rent book, if it amounted to a representation, constituted a representation of law and not of fact.
In all other cases, such as this one, the application should not be dismissed. If triable issues are found to exist, summary judgment should be refused, and an order made granting unconditional or conditional leave to defend, with an appropriate order as to the costs of the application, which would normally be dealt with at the trial.
The upshot is that I would allow this appeal, set aside the decision of the High Court, order the respondent to give possession of the entire store (subject to the rights of Messrs Scientific Industrial Services) with mesne profits of Kshs 1,865.50 a month from November 1, 1980 until possession be delivered up with interest at 12% a year from the date of the plaint until payment.
Issues in the judgment
#The mesne profits figure is given inconsistently as Kshs 1,865.50 in most of the judgment but as Kshs 1,865.80 once in the pleadings narrative.
The notice dates appear as September 23, 1980 (section 4(2) notice altering tenancy terms) and September 28, 1980 (notice to quit the store); the judgment also refers to the notice to quit without stating under which Act's provisions it was served, and later Chesoni Ag JA states there was no section 4 notice in respect of the store.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trikam Maganlal Gohil another v John Waweru Wamai [1983] KECA 53 (KLR)", Case Analysis (1983). Civil Appeal (Nairobi High Court Civil Suit 3575 of 1980 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/53/eng@1983-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.