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Court of AppealPartially AllowedNot stated in the judgment text provided

Heptulla v Noormohamed [1984] KECA 42 (KLR)

Court of Appeal of Kenya
5 April 1984
2,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan tenant using premises illegally lost all legal protection, and the landlord won possession, back-rent, interest, and costs.

What this practically means

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Executive summary

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The appellant, owner of premises on Plot No 209/136/170, Kirinyaga Road, Nairobi, let two stores to the respondent under an oral agreement and gave notice to quit effective July 31, 1980. When the respondent remained in possession, the appellant sued for possession and mesne profits and applied for summary judgment; the High Court judge dismissed the application, holding there were triable issues and suggesting referral to the Rent Restriction Tribunal. The respondent's defence was that the premises were let as a dwelling, entitling him to Rent Restriction Act (cap 296) protection, alternatively to protection under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301). The Court of Appeal (Simpson CJ, Nyarangi Ag JA concurring, Kneller JA agreeing) allowed the appeal. The approved plan showed authorised user as stores only; the respondent's residential use contravened By-law 252 of the Local Government (Adoptive By-laws) (Building) Order 1968, rendering the relationship tainted with illegality. Applying Charan Kaur and the Privy Council's decision in Mistry Amar Singh v Sewano Kulubya, the court held the landlord's claim for possession rested on ownership and the notice to quit, not on the illegal agreement, whereas the tenant needed the illegal transaction to claim statutory protection. The premises also fell outside the definition of "shop" in cap 301. The Court set aside the High Court orders, awarded possession, mesne profits at Kshs 1,107 per month from August 1, 1980 with interest at 12% per annum, and costs to the appellant in both courts with interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in finding that there were triable issues and dismissing the application for summary judgment
  2. 2.Whether the respondent, using premises approved only as stores for residential purposes, was entitled to the protection of the Rent Restriction Act (cap 296)
  3. 3.Whether the parties to the illegal user/contract were in pari delicto and whether the appellant's claim for possession was based on the illegal agreement
  4. 4.Whether the premises fell within the definition of "shop" under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301)
  5. 5.Whether the appellant was entitled to mesne profits and at what rate

Key legal issues

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01

Illegality of user and tenancy protection

Holding

A tenant who occupies premises for a purpose contrary to the approved plan commits an offence and cannot invoke the Rent Restriction Act, as his defence rests on an illegal agreement, while the landlord's claim rests on ownership and the notice to quit.

Reasoning

By-law 252 of the Local Government (Adoptive By-laws) (Building) Order 1968 made it an offence to use a building otherwise than for the purpose in the approved plan, and made owners permitting such use liable as well. Following Charan Kaur and Mistry Amar Singh v Sewano Kulubya, the court held the landlord's claim was not founded on the illegal agreement: it relied on ownership and notice to quit. The tenant, who needed the illegal transaction to establish Rent Restriction Act protection, could not rely on it.

p. 3
02

In pari delicto and ex turpi causa

Holding

Although the landlord had also permitted the illegal user, the landlord's right to possession was not based on the illegal agreement, so the maxim ex turpi causa did not bar the claim; the tenant alone bore the illegality because he raised it.

Reasoning

Adopting the Privy Council's reasoning in Mistry Amar Singh v Sewano Kulubya, the court held that no leasehold interest vested in the occupier because the agreements were unlawful, and his occupation was contrary to law. The landlord could sue for possession without relying on the illegal transactions. Nyarangi Ag JA quoted Lord Morris on ex turpi causa non oritur actio, stressing that a court ought not to enforce obligations arising out of an illegal transaction.

p. 2
03

Applicability of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

Holding

The premises, though stores, were not occupied wholly or mainly for retail or wholesale trade or business or for rendering services for money, so the definition of "shop" in section 2(1) of cap 301 did not apply and the Act afforded no protection.

Reasoning

Mr Vohra alternatively sought protection under cap 301 on the basis that stores could qualify as a "shop". The court applied the statutory definition and found the premises were not so occupied, citing Trikam Maganlal Gohil v John Waweru Wamai. Nyarangi Ag JA likewise held that cap 301 affords no refuge to the respondent.

p. 3
04

Triable issues and summary judgment

Holding

The learned judge erred in finding triable issues; on the evidence the respondent was a trespasser from the effective date of the notice to quit and summary judgment ought to have been entered.

Reasoning

The appellant produced an approved plan showing authorised user as stores only; the respondent filed no affidavit by a valuer and did not dispute the surveyor's valuation of Kshs 1,107 per month. The defence rested solely on illegality, which could not found triable issues. Nyarangi Ag JA added that the respondent could not rely on long illegal occupation to file a defence with triable issues and could not establish lawful occupation.

p. 3

Legal principles established

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  • A tenant who relies on an illegal agreement or illegal user of premises cannot rely on that illegality to defeat a landlord's claim for possession, since the landlord's claim for possession is not founded on the illegal agreement.
  • Where a building is used otherwise than for the purpose specified in the approved plan, the relationship of landlord and tenant is tainted with illegality and no court should enforce obligations arising from the illegal transaction.
  • The material date for assessing the parties' position on illegality in summary proceedings is the date when the motion for summary judgment was heard.

Court orders

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  1. 1.Appeal allowed; orders of the High Court (dismissal of the summary judgment application) set aside
  2. 2.Appellant awarded possession of the suit premises
  3. 3.Mesne profits awarded at Kshs 1,107 per month from August 1, 1980 until delivery up of possession
  4. 4.Interest on mesne profits at 12% per annum from the date of filing the plaint until payment
  5. 5.Respondent to pay the appellant's costs of the appeal and of the suit in the court below, including costs of the summary judgment application
  6. 6.Costs in the court below to carry interest at 12% per annum from the date of filing suit until payment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Wrote the leading judgment: the respondent could not rely on his own illegal residential user of premises approved only as stores to claim Rent Restriction Act protection; allowed the appeal, awarded possession and mesne profits.

I would allow the appeal and set aside the orders of the High Court. I would award the appellant possession of the suit premises and mesne profits at the rate of Kshs 1,107 per month from August 1, 1980p. 3
concurring

Wrote the judgment

Delivered a separate concurring judgment agreeing with Simpson CJ, holding the respondent cannot establish lawful occupation and that the court cannot enforce an illegal contract, citing the ex turpi causa maxim from Mistry Amar Singh v Kulubya.

I am in entire agreement with the judgment of Simpson CJ. I would allow the appeal. I agree with the order on costs and with the other orders proposed by Simpson CJ.p. 4
majority
On appeal from
High Court of Kenya at Nairobi
Not stated
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the High Court dismissing an application for summary judgment (statutory appellate jurisdiction; no specific article cited)

Relief refused

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Mesne profits at the original claimed rate of Kshs 1,200 per month

Appellant restricted his claim in the memorandum of appeal to the surveyor's valuation of Kshs 1,107 per month

p. 3

Costs

Respondent to pay the appellant the costs of the appeal and the costs of the suit in the court below, including costs of the summary judgment application; costs in the court below to carry interest at 12% per annum from the date of filing suit until payment; interest at 12% per annum on mesne profits from the date of filing the plaint until payment.

Quotable passages

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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 would allow the appeal and set aside the orders of the High Court. I would award the appellant possession of the suit premises and mesne profits at the rate of Kshs 1,107 per month from August 1, 1980, until delivering up of possession, with interest thereon at 12% per annum from the date of filing the plaint until payment.
p. 3Final orders - disposition of the appeal
No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of court, and if the person invoking the aid of the court is himself implicated in the illegality.
p. 4Ex turpi causa - illegality
The respondent, on the other hand, is seeking to rely on such an agreement and is not therefore entitled to the protection of the Rent Restriction Act.
p. 3Tenant cannot rely on illegality for statutory protection
The insurmountable hurdle which faces the respondent is that he cannot establish lawful occupation.
p. 3Concurring judgment of Nyarangi Ag JA
The material date, however, is the date when the motion for summary judgment was heard by the judge in the High Court
p. 2Material date for illegality assessment
I would order the respondent to pay the appellant the costs of this appeal and his costs of the suit in the court below, including costs of the summary judgment application, the costs in the court below to carry interest at 12% per annum from the date of filing suit until payment.
p. 3Costs order

Issues in the judgment

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minor

The judgment does not state the case number of the appeal or of the suit in the High Court, nor the name of the parties beyond descriptions; the case title cannot be fully established from the text.

minor

The record does not name the parties; the appellant is referred to only as 'the appellant (the plaintiff in the court below)' and the respondent by counsel's name, so party names are recorded descriptively.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Heptulla v Noormohamed [1984] KECA 42 (KLR)", Case Analysis (1984). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/42/eng@1984-04-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.