Kapset Agencies Limited v Sarjit Singh Choda [1995] KECA 136 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop eviction because the tenant's appeal had no realistic chance of success.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy was controlled under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act as being for a term of less than five years
The lease was for a period exceeding five years and was reduced into writing; the tenancy was not controlled.
The court relied on the amended section 32 of the Registration of Titles Act, noting the 1989 amendment preserving the contractual effect of unregistered instruments. Since the lease clearly provided for a duration exceeding five years, section 2 of the Act excluded it from 'controlled tenancy' as it was created by an agreement reduced into writing.
Whether a change in the entire shareholding of the tenant company broke the tenancy
No break was created; the company is an entity distinct from its directors and shareholders.
Applying the principle from Solomon v Solomon, the court held that the tenancy remained in the name of the applicant company throughout. A purchase of shares with the respondent's knowledge and consent did not convert the balance of the term into a new lease for less than five years.
Whether a re-entry covenant constitutes a provision for termination within five years
A re-entry covenant is not a provision for termination within five years.
The right of re-entry might occur after five years but within the duration of the lease; its occurrence is uncertain. Even if the event happens within five years, it is not 'a provision for termination ... within five years' under section 2 of the Act.
Whether the alleged October 1993 monthly tenancy agreement raised a triable issue
The alleged agreement was a sham defence and a belated afterthought.
No writing was produced, and the respondent's advocates had written several letters between August 1993 and January 1994 to which the applicant never responded or mentioned any such agreement. The defence was rejected by the High Court and by this Court.
Legal principles established
#- An applicant for a stay under Rule 5(2)(b) must show an arguable appeal and that the appeal, if successful, should not be rendered nugatory.
Court orders
#- 1.This application, in the result, fails and must be, as it hereby is, dismissed with costs.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC 472 of 1994
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kapset Agencies Limited v Sarjit Singh Choda [1995] KECA 136 (KLR)", Case Analysis (1995). Civil Application No NAI 113 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/136/eng@1995-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.