Jitendra Mathurdas Kanabar v Fish and Meat Limited
The bottom line
#Kenya's Court of Appeal ruled that a tenant who objects to a termination notice but fails to refer it to the Tribunal in time loses the tenancy automatically.
What this practically means
#Executive summary
#Key legal issues
#Effect of a tenant's failure to file a reference to the Tribunal under section 6(1) after notifying non-compliance with a tenancy notice
The tenancy notice takes effect on the date specified under section 10, terminating the tenancy; the landlord-tenant relationship ceases and the Tribunal loses jurisdiction.
Section 6(1) allows a receiving party who has notified non-compliance to refer the matter to the Tribunal before the notice takes effect, whereupon the notice is of no effect. Where no reference is made, section 10 operates and the notice takes effect from the specified date. Once the tenancy is terminated, there is no controlled tenancy within section 2 of the Act, and the Tribunal's statutory jurisdiction depends on the existence of such a tenancy. The landlord must then resort to the ordinary courts to enforce rights to possession.
Whether the High Court judge erred in upholding the preliminary objection that only the Tribunal could determine the dispute
The judge erred; the Tribunal had no jurisdiction over a tenancy that had already terminated, and the High Court was not divested of jurisdiction.
The judge below held that the Tribunal retained power even where the tenant did not comply with the Act's requirements and that the expiry of the notice did not oust the Tribunal's jurisdiction. The Court of Appeal held this was wrong: non-compliance with section 6(1) meant the notice took effect under section 10, ending the controlled tenancy. Without a controlled tenancy the Tribunal had no jurisdiction, so the preliminary objection should have been dismissed and the summary judgment application heard on its merits.
Legal principles established
#- Where a tenant opposes a tenancy notice but fails to refer the matter to the Tribunal under section 6(1) of the Act before the notice takes effect, the notice takes effect under section 10 and terminates the tenancy, ending the landlord-tenant relationship and ousting the Tribunal's jurisdiction over the former tenancy.
- Without a subsisting controlled tenancy, the Tribunal under the Act has no jurisdiction, and the landlord may enforce the right to possession in the High Court.
Court orders
#- 1.Appeal allowed
- 2.Order of the superior court dismissing with costs the appellants' application under Order XXXV rules 1 and 7 and Order L rule 1 of the Civil Procedure Rules set aside
- 3.The said application restored to hearing in the High Court of Kenya at Mombasa
- 4.Appellants to have the costs of this appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 501 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory order of the High Court (appeal from an order dated 7th November, 1995)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jitendra Mathurdas Kanabar v Fish and Meat Limited", Case Analysis (1997). Civil Appeal 267 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.