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Court of AppealDismissedCivil Appeal No. 35 of 2015· [2015] KECA 176 (KLR)

Nandlal Jivraj Shah & 2 others (all trading as Jivaco Agencies v Kingfisher Properties Limited [2015] KECA 176 (KLR)

Court of Appeal of Kenya
4 December 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,693 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a tenant who objects to a rent notice but never files a Tribunal reference loses their protected tenancy once the notice period ends.

What this practically means

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Executive summary

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The appellants, tenants trading as Jivaco Agencies, received a notice under Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act terminating their controlled tenancy of the Manyara Building. They served a letter of objection but, as was common ground, never filed a reference in the Business Premises Rent Tribunal. The landlord, Kingfisher Properties Limited, then sued in the High Court at Mombasa for vacant possession, rent arrears and mesne profits, and obtained summary judgment from Kasango J on 23rd August 2013, followed by rulings on 20th March 2014 and 3rd March 2015 facilitating execution. The appellants appealed, contending the notice was defectively served on a business name without legal capacity, that the High Court lacked jurisdiction to terminate a controlled tenancy, and that triable issues existed. The respondent conceded a replying affidavit existed but maintained no triable issues were raised. The Court held that only the filing of a reference suspends a tenancy notice; an objection alone does not. Upon lapse of the notice period without a reference, the controlled tenancy terminated, the landlord/tenant relationship ceased, the Tribunal lost jurisdiction, and the High Court was properly seised. The validity of the notice could only have been challenged in the Tribunal and could not be raised as a triable issue. Although the trial court erred in finding no replying affidavit, nothing turned on that error. The appeal was dismissed with costs.

Key legal issues

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01

Effect of failure to file a reference in the Tribunal upon receipt of a tenancy notice

Holding

A controlled tenancy terminates by effluxion of the notice period where the tenant serves an objection but files no reference; the Tribunal thereafter has no jurisdiction and the landlord may sue for possession in the High Court

Reasoning

Section 6(1) of the Act provides that a tenancy notice is of no effect only upon the filing of a reference before the notice takes effect. Service of an objection alone does not stop time from running. Following Jitendra Mathurdas Kahabar v Fish and Meat Limited, the landlord/tenant relationship ceased when the notice period lapsed, so the Tribunal had no jurisdiction and the High Court was properly seised of the eviction claim.

p. 5
02

Whether the defence and replying affidavit raised triable issues

Holding

The grounds raised (jurisdiction of the High Court and validity of the tenancy notice) were not triable issues; the summary judgment was properly entered

Reasoning

The trial court erred in finding there was no replying affidavit, a fact conceded by the respondent, but nothing turned on it as it merely reiterated the defence. The jurisdictional challenge failed because no landlord/tenant relationship existed, and the validity of the notice could only be determined by the Tribunal, before which no reference had been filed. Neither ground could stand as a triable issue.

p. 6
03

Whether the appeal against the summary judgment could be entertained through the present appeal notwithstanding the notice of appeal covering only the ruling of 3rd March 2015

Holding

The defect was cured under Section 3A of the Appellate Jurisdiction Act since the respondent raised no objection and suffered no prejudice

Reasoning

The memorandum of appeal straddled two decisions while the notice of appeal covered only the later ruling. No objection was taken by the respondent and the oversight appeared to have been lost on it. The Court invoked its inherent jurisdiction and the overriding objective to allow the just and expeditious determination of the appeal on the merits despite the technical defect.

p. 3

Legal principles established

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  • Only the filing of a reference in the Business Premises Rent Tribunal suspends the operation of a tenancy notice; a mere objection does not, and upon lapse of the notice period without a reference the controlled tenancy terminates and the Tribunal loses jurisdiction
  • The jurisdiction of the Business Premises Rent Tribunal is anchored on the existence of a landlord/tenant relationship; once the controlled tenancy has terminated, disputes must be pursued in the High Court
  • Continued occupation of premises after termination of a controlled tenancy does not revive or create a controlled tenancy
  • A challenge to the validity of a tenancy notice is exclusively within the jurisdiction of the Tribunal and cannot be raised in the High Court as a triable issue
  • Where triable issues are raised in a defence, an application for summary judgment cannot be entertained and unconditional leave to defend must be granted
  • Where a procedural defect in an appeal occasions no prejudice to the other party, the Court of Appeal may cure the defect under Section 3A of the Appellate Jurisdiction Act in furtherance of the overriding objective

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellants shall pay the respondent's costs of the appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4(5)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 6(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 10
  • Appellate Jurisdiction ActSection 3A

Cases cited (5)

  • Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Jitendra Mathurdas Kahabar & 2 others v Fish and Meat Limited
    [1997] eKLR
  • Mwai Limited & another v. Bridge-up Container Services Limited
    Msa HC Misc. Appl No. 27 of 2010
  • R v. The Chairperson Business Premises Rent Tribunal ex parte Kenya Safari Lodges and Hotels Limited & another
  • Osodo v Barclays Bank International Limited
    [1981] KLR 30
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 6 of 2011
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (Section 3A invoked by the Court); appeal from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Nandlal Jivraj Shah & 2 others (all trading as Jivaco Agencies v Kingfisher Properties Limited [2015] KECA 176 (KLR)", Case Analysis (2015). Civil Appeal No. 35 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/176/eng@2015-12-04

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