Kenya Broadcasting Corporation v Ann Muthoni Kibiro & another [2015] KECA 474 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a tenant who stays past the lease expiry, and uses utilities without opening its own accounts, must pay monthly rent and utility bills in full.
What this practically means
#Executive summary
#Key legal issues
#Rent liability after expiry of the lease where the tenant holds over
The appellant, having given notice to vacate by 31st March 2002 but remaining in occupation until 25th November 2002, became a month-to-month tenant and was liable for eight months' rent at Sh.458,816/40 per month; section 14 of the Distress for Rent Act did not apply because the landlady acquiesced.
The court found it was the appellant who delayed handing back the premises. The landlady took no steps to recover possession and by her letter gave the appellant time to vacate, which amounted to acquiescence. Double rent under section 14 presupposes the tenant quitting at the time specified without delivering possession, which was inconsistent with the acquiescence found. The court therefore invoked sections 106 and 116 of the Transfer of Property Act to hold the appellant liable on a month-to-month basis, despite the pleading for mesne profits, since relief proved by evidence should not be denied for want of pleading.
Liability for water consumed during the tenancy absent privity between the appellant and the account holder
The appellant was liable for Sh.2,729,921/15 on account of water consumed, there being an implied undertaking to pay arising from its breach of clause 4 of the lease by failing to open its own water accounts.
Clause 4 of the tenancy agreement made opening and maintaining water and electricity accounts the responsibility of the appellant. It never opened accounts, so the meters could not be installed and its staff consumed water through the account opened by the 2nd respondent. Bills were forwarded to and received by the appellant, which never returned or disputed them, and its own witness conceded the obligation in cross-examination. Privity of contract was irrelevant because the liability rested on consumption and the implied undertaking, not on the lease. The trial judge's scrutiny of the bills was affirmed.
Applicability of section 46(a) of the Kenya Broadcasting Corporation Act to a tenancy dispute
The statutory notice requirement did not apply because the suit did not concern acts done in execution of the Corporation's statutory functions under section 8; in any event notice was served on 17th July 2002, and the 2nd respondent did not need to issue a separate notice.
Section 46 governs actions commenced against the Corporation in respect of acts done in execution of its statutory duty. Renting staff accommodation is a private-law undertaking outside the eleven functions listed in section 8. The court also noted that a notice dated 17th July 2002 was served on the Managing Director before the suit filed on 18th October 2002, that the issue was never among the agreed grounds for determination in the High Court, and that the 2nd respondent, whose involvement flowed from the water account he opened, need not have issued his own notice.
Effect of a respondent's stale notice of appeal and absence of a notice to affirm under Rule 94 of the Court of Appeal Rules
A respondent's notice of appeal not followed by a record of appeal falls by the wayside or is deemed withdrawn and has no effect; Rule 94 notice to affirm is required only where the respondent contends the decision should be affirmed on grounds other than those relied on below.
The appellant argued that the respondents' unwithdrawn notice of appeal demonstrated a concession that the judgment was wrong and that no notice to affirm was filed. The court found the notice of appeal had no effect either way. As to Rule 94, the respondents did not seek to affirm on other or additional grounds, so no notice was necessary. Both grounds were dismissed.
Legal principles established
#- On a first appeal, the appellate court is enjoined to approach the matter as if it were a fresh trial, reviewing the recorded evidence and reaching its own conclusions on the trial judge's findings.
- Where a lease obliges a tenant to open and maintain utility accounts and the tenant fails to do so while continuing to consume the utility through accounts in the landlord's name, the tenant is taken to have given an implied undertaking to pay for that consumption.
- Section 46 of the Kenya Broadcasting Corporation Act, requiring prior written notice before legal proceedings, applies only to acts done by the Corporation in execution of its statutory functions under section 8, and does not extend to its undertakings as a tenant.
- A tenant who gives notice to quit but remains in occupation with the acquiescence of the landlord, who takes no steps to recover the premises, becomes a month-to-month tenant liable to pay monthly rent notwithstanding that mesne profits were pleaded.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The judgment of the High Court (Njagi, J.) dated 26th October 2004 directing payment of Sh.3,670,531/20 as rent for eight months and Sh.2,729,921/15 on account of water consumed is affirmed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1133 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Broadcasting Corporation v Ann Muthoni Kibiro & another [2015] KECA 474 (KLR)", Case Analysis (2015). Civil Appeal No. 61 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/474/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.