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Court of AppealAllowedCivil Appeal No. 267 of 1996· [1997] KECA 217 (KLR)

JITENDRA MATHURDAS KAHABAR & 2 OTHERS vs FISH AND MEAT LIMITED [1997] KECA 217 (KLR)

Court of Appeal of Kenya
2 May 1997
JGJ.E. GicheruASA.B. ShahSBS.E.O. Bosire
1,588 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a tenant who objects to a termination notice but misses the deadline to refer it to the Tribunal loses the tenancy automatically.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Gicheru, Shah JJ.A. and Bosire, Ag. J.A.) allowed the appellants-landlords' appeal against a ruling of Mbogholi Msagha, J. delivered on 7th November 1995 in H.C.C.C. No. 501 of 1995, in which the High Court upheld a preliminary objection that its jurisdiction had been statutorily divested and dismissed the appellants' application for summary judgment under Order XXXV rules 1 and 7 and Order L rule 1 of the Civil Procedure Rules. The respondent was the appellants' monthly tenant of a godown/warehouse in Mombasa. On 21st March 1995 the appellants served a section 4(2) tenancy notice on grounds of persistent rent arrears; the respondent notified unwillingness to comply but never filed a reference to the Tribunal under section 6(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act before the notice took effect on 1st June 1995. The Court held that under section 10 of the Act the notice took effect on that date, terminating the tenancy and ending the landlord-tenant relationship; thereafter no controlled tenancy existed within section 2 of the Act, so the Tribunal had no jurisdiction and the landlords were entitled to come to the High Court to enforce their right to possession. The Court set aside the order dismissing the summary judgment application and restored it for hearing in the High Court, awarding the appellants the costs of the appeal. Counsel for the respondent opted not to respond after her application to withdraw from acting was rejected.

Key legal issues

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01

Effect of a tenant's failure to refer a tenancy notice to the Tribunal under section 6(1) of the Act

Holding

The tenancy notice takes effect on the date specified in it under section 10, terminating the tenancy; the landlord-tenant relationship ceases and the premises cease to be a controlled tenancy.

Reasoning

Section 10 provides that where a tenant fails to refer the matter to a Tribunal within the appropriate time, the notice takes effect from the date specified to terminate the tenancy. The respondent notified unwillingness to comply but filed no reference before 1st June 1995. The tenancy therefore terminated on that date, and the appellants became entitled to possession, requiring recourse to the High Court to enforce their property rights.

p. 3
02

Whether the Tribunal's jurisdiction survives the expiry of the notice where the tenant did not comply with the Act's requirements

Holding

The learned judge erred in holding that the Tribunal retained jurisdiction notwithstanding the tenant's non-compliance; without a controlled tenancy the Tribunal has no jurisdiction and the High Court was properly seised.

Reasoning

The judge below had held that the Tribunal could determine the dispute even where the tenant did not comply with the Act's requirements and that the Tribunal's jurisdiction was not ousted by expiry of the notice. The Court of Appeal held this was erroneous because the termination of the tenancy under section 10 removed the very subject matter (a controlled tenancy) on which the Tribunal's jurisdiction depends.

p. 3

Legal principles established

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  • Where a tenant opposes a tenancy notice but fails to refer the matter to the Tribunal before the notice takes effect, the notice takes effect under section 10 of the Act and terminates the tenancy, ending the landlord-tenant relationship and with it the Tribunal's jurisdiction.
  • Without a subsisting controlled tenancy, the Tribunal under the Act has no jurisdiction, and the landlord may resort to the ordinary courts to enforce rights to possession.

Court orders

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  1. 1.Appeal allowed
  2. 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. 3.The said application restored to hearing in the High Court of Kenya at Mombasa
  4. 4.Appellants to have the costs of the 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 (no specific constitutional/statutory provision quoted in the judgment)

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, "JITENDRA MATHURDAS KAHABAR & 2 OTHERS vs FISH AND MEAT LIMITED [1997] KECA 217 (KLR)", Case Analysis (1997). Civil Appeal No. 267 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/217/eng@1997-05-02

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