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Court of AppealPartially AllowedCivil Appeal 151 of 2019· [2022] KECA 600 (KLR)

Omar & another v Shari

Court of Appeal
6 May 2022
SKSG KairuPNP NyamweyaJLJW Lessit
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed tenants evicted under a rent order can sue for unlawful eviction in the Environment and Land Court.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (SG Kairu, P Nyamweya and JW Lessit, JJA) allowed the appellants' appeal against a ruling of the Environment & Land Court (Yano, J.) which had dismissed their suit in limine on two grounds: lack of original jurisdiction under the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act, and res judicata. The appellants, controlled tenants, alleged they were evicted from premises on Plot No. 53/3/MN Changamwe, Mombasa on 16th July 2018 in the guise of distress for rent. The Court held that although the tenancies were controlled, the reliefs sought - a declaration of unlawful eviction, reinstatement, injunction and damages - were outside the BPRT's remit, since the BPRT has no jurisdiction to issue injunctions or similar remedies against a landlord (following Narshidas v Nyali). The ELC therefore had jurisdiction. On res judicata, the Court found the earlier BPRT references concerned rent assessment and RMCC No. 2064 of 2017 was struck out for want of jurisdiction; the ELC suit arose from the distinct 2018 eviction events. The Court further found the BPRT order of 5th July 2018 permitted distress for rent only, not dispossession, so the Judge misdirected himself. The ruling was set aside in its entirety; the suit and the interlocutory application of 20th September 2018 were reinstated for hearing before a Judge of the ELC other than Yano, J., with costs of the appeal to the appellants. This decision binds the ELC and subordinate courts on the BPRT's remedial limits and the scope of res judicata in comparable disputes.

Key legal issues

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01

Whether the ELC lacked original jurisdiction over the appellants' suit by virtue of the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act.

Holding

The ELC had jurisdiction. Although the tenancies were controlled tenancies, the reliefs sought (declaration of unlawful eviction, reinstatement, injunction, damages) were outside the remit of the BPRT, which cannot grant injunctions against a landlord; the ELC was therefore the proper forum.

Reasoning

The Court accepted the tenancies were controlled under Section 2 of the Act, but held that the reliefs sought were not remedies the BPRT could grant. Relying on Narshidas v Nyali, the BPRT has no power to issue injunctions or similar remedies against a landlord. A tenant facing illegal eviction may therefore turn to the ELC; the Judge misdirected himself in holding otherwise.

p. 4
02

Whether the suit was barred by res judicata given prior BPRT references Nos. 37 and 38 of 2017 and RMCC No. 2064 of 2017.

Holding

Res judicata did not apply. The earlier BPRT references concerned rent assessment under Section 4 notices; RMCC No. 2064 of 2017 concerned distress over disputed rent and was struck out for want of jurisdiction; the ELC suit arose from the 2018 eviction and sought different reliefs.

Reasoning

The Court compared the parties' claims and issues in the prior proceedings with the plaint before the ELC. The prior matters concerned rent assessment and an earlier distress; the ELC suit was precipitated by the July 2018 eviction and sought reliefs outside the BPRT's remit. The Judge's statement that the issues could have been raised earlier was an error.

p. 4
03

Whether the appellants were dispossessed pursuant to lawful orders of the BPRT.

Holding

No. The BPRT order of 5th July 2018 permitted levying distress for rent and stayed it to 13th July 2018; it did not order eviction or dispossession. The Judge misdirected himself in finding the dispossession was pursuant to tribunal orders.

Reasoning

The Court examined the exhibited BPRT order and found it authorised distress for rent arrears only, with a stay to 13th July 2018 and mention for compliance. It did not sanction eviction. Prima facie, the appellants were justified in complaining they were evicted in the guise of distress for rent, which undermined the Judge's jurisdictional and res judicata reasoning.

p. 3

Legal principles established

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  • The Business Premises Rent Tribunal has no jurisdiction to issue an injunction or similar remedy against a landlord; a controlled tenant facing illegal or forcible eviction must seek that remedy in the High Court/ELC.
  • An order of the BPRT permitting levying of distress for rent is not an order for eviction or dispossession; a landlord who dispossesses a tenant under such an order evicts unlawfully.
  • Where a suit is precipitated by events (an eviction) distinct from the subject of earlier proceedings (rent assessment references), the doctrine of res judicata does not bar the later suit.

Court orders

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  1. 1.Appeal allowed.
  2. 2.Ruling of the ELC delivered on 17th September 2019 set aside in its entirety.
  3. 3.Appellants' suit in ELC No. 210 of 2018 reinstated for hearing before a Judge of the ELC other than Yano, J.
  4. 4.Interlocutory application dated 20th September 2018 reinstated for hearing before a Judge of the ELC other than Yano, J.
  5. 5.Appellants to have the cost of the appeal.

Authorities

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Legislation

  • Landlord & Tenant (Shops, Hotels and Catering Establishments) ActSection 2
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) ActSection 4
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) ActSection 12(1)(e)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) ActSection 15
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 40 Rule 7

Cases cited (4)

  • Narshidas & Company Limited v Nyali Air Conditioning and Refrigeration Services Ltd
    Civil Appeal No 205 of 1995

    BPRT has no jurisdiction to issue an injunction or similar remedy against a landlord.

  • The Republic v Nairobi Business Premises Rent Tribunal & others, Ex Parte
    [1979] KLR 147

    BPRT has no jurisdiction to issue an injunction or similar remedy against a landlord (as cited within Narshidas).

  • Re: Hebtulla Properties Limited
    [1979] K.L.R 96

    BPRT lacks jurisdiction to grant injunction-like remedies (as cited within Narshidas).

  • Giella vs Cassman Brown

    Principles for interlocutory injunctions; distinguished as setting a lower standard than for mandatory injunctions.

On appeal from
Environment & Land Court at Mombasa
ELC Case No. 210 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution (first appeal against a ruling of the Environment & Land Court); no specific provision is cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar & another v Shari", Case Analysis (2022). Civil Appeal 151 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/600/eng@2022-05-06

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