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Court of AppealDismissedCivil Appeal No. 83 of 2016

Rashid Kaluma Okedi & another v Shamshad Ahmed Yakub & another [2019] KECA 777 (KLR)

Court of Appeal of Kenya
9 May 2019
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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If you ignore a landlord's termination notice and court summons in Kenya, you lose your tenancy protection and your right to be heard.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and J. Mohammed, JJ.A) dismissed an appeal against a ruling of the Environment and Land Court at Kitale (Obaga J) refusing to set aside an exparte judgment evicting the appellants from Kitale Municipality Block 6/39. The respondents, the appellants' landlords, had served termination notices under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301); the appellants filed no reference to the Business Premises Rent Tribunal, so the notices took effect and they ceased to be protected tenants. The respondents then sued for eviction in the High Court; the appellants, though served with summons, neither entered appearance nor filed a defence, and judgment was entered on formal proof. On appeal, the court framed two issues: jurisdiction and the dismissal of the motion to set aside the exparte judgment. On jurisdiction, applying its own decision in Reuben Muli Musyoki t/a Konza Merchants v Wayua Mutisya Kinothya, it held that once a termination notice took effect the former tenants were trespassers, so the suit was one of trespass within the High Court's jurisdiction, not a tenancy dispute for the BPT. On the second issue, invoking Mbogo v Shah, it held the judge had properly exercised his discretion under Order 10 Rule 11 because service was proved by affidavit and the appellants offered no satisfactory explanation for their default. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court (Environment and Land Court) had jurisdiction to hear the suit seeking eviction of the appellants from the suit premises
  2. 2.Whether the learned judge erred in dismissing the appellants' motion to set aside the exparte judgment

Key legal issues

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01

Jurisdiction of the High Court over a suit for eviction where the tenancy was a controlled tenancy under the Landlord and Tenant Act

Holding

The Business Premises Rent Tribunal's jurisdiction over termination of controlled tenancies is exhausted once a termination notice under section 4(2) takes effect without a reference to the BPT; the former tenant is then a trespasser and the High Court has jurisdiction to entertain a suit for eviction.

Reasoning

Section 11 establishes the BPT and section 4 confers power over termination of controlled tenancies. The appellants did not file any reference to the BPT objecting to the termination notices, so the notices took effect and their tenancy was terminated. Their continued occupation amounted to trespass, a tort within the superior court's jurisdiction, and the suit before the judge was one of trespass. The jurisdictional ground of appeal therefore failed.

p. 2
02

Whether the learned judge exercised his discretion judicially in refusing to set aside the exparte judgment

Holding

The judge properly exercised his discretion under Order 10 Rule 11 of the Civil Procedure Act; the appellants were duly served with notices and summons, offered no satisfactory explanation for their default, and no basis existed for appellate interference.

Reasoning

Relying on Mbogo & another v Shah, an appellate court will not upset the exercise of a trial judge's discretion unless the judge misdirected himself or was clearly wrong resulting in misjustice. Here service was effected by a process server who filed affidavits of service, and the appellants gave no satisfactory explanation for failing to enter appearance or file a defence. Having ignored the summons, they relinquished their right to be heard and cannot blame the judge.

p. 3

Legal principles established

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  • Once a termination notice under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act takes effect for want of a reference to the Business Premises Rent Tribunal, the former protected tenant becomes a trespasser and the High Court has jurisdiction to order eviction
  • An appellate court will not interfere with a trial judge's discretion to set aside an exparte judgment unless the judge misdirected himself or was clearly wrong, resulting in misjustice

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EG
majority
HO
majority
JM
majority
On appeal from
Environment and Land Court of Kenya at Kitale
Kitale E & L Case No. 153 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court (the judgment does not cite a specific constitutional provision for its own jurisdiction)

Relief refused

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Setting aside of the exparte judgment and consequential orders

Appellants failed to provide a satisfactory explanation for failing to enter appearance and file a defence; the learned judge properly exercised his discretion

p. 3

Examination of the appellants' defence to the respondents' suit

Having ignored the summons, the appellants relinquished their right to be heard and the appellate court cannot examine the defence at this stage

p. 3

Costs

Appeal dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellants had been served with termination notices issued under the Landlord and Tenants Act, which notices took effect because they did not file any reference to the BPT objecting to the termination notices.
p. 2Exhaustion of BPT jurisdiction and the effect of an unchallenged termination notice
a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision
p. 2Appellate interference with exercise of discretion (Mbogo v Shah principle)
the appellants' having ignored the summons to enter appearance, and failed to file appearance and defence to the respondents' suit, they relinquished their right to be heard
p. 3Consequence of default: relinquished right to be heard
we find no merit in this appeal and dismiss it with costs to the respondents. Those shall be the orders of the Court.
p. 3Final orders and disposition

Issues in the judgment

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minor

The respondents' counsel cited the case as 'Reuben Muli vs Wayua Mutisya Kinothia & another, Civil Appeal No. 3 of 2002', while the court renders the name as 'Reuben Muli Musyoki t/a Konza Merchants vs Wayua Mutisya Kinothya & another'; the spellings differ within the same judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Rashid Kaluma Okedi & another v Shamshad Ahmed Yakub & another [2019] KECA 777 (KLR)", Case Analysis (2019). Civil Appeal No. 83 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/777/eng@2019-05-09

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