Bahari (T) Company Limited v Alibhai Ramji Investment Limited (Civil Appeal 51 of 2020) [2023] KECA 1284 (KLR)
The bottom line
#Kenya's Court of Appeal upheld rent arrears and repair costs against a tenant, ruling that once a rent dispute goes to the Tribunal, no new rent notice can be issued.
What this practically means
#Executive summary
#Key legal issues
#Validity of a notice of reassessment of rent issued while a reference on rent was pending before the Tribunal
The notice was invalid, being in contravention of section 9(3) of the Act; once the rent issue was pending before the Tribunal, the appellant could not issue any further notice touching on rent, and after determination no notice could issue for two years in the case of an assessment of rent
The appellant had exercised option (d) under section 6(1) by lodging a reference in Tribunal Case No 79 of 2016, which suspended the landlord's notice and exhausted its own options. Section 9(3) bars any further tenancy notice based on matters affected by a Tribunal determination on rent until two years elapse. The appellant's notice of 31 August 2016, issued while the reference was undetermined, therefore had no place under the Act and the respondent was not obliged to respond to it.
Whether payment of the Tribunal-enhanced rent for a year amounted to waiver/estoppel
Yes; by paying the enhanced rent from November 2016, the appellant intentionally relinquished or abandoned its quest for rent reduction and was estopped by conduct or waiver from claiming any right to reduce the rent
The court adopted Maraga, J's statement in Sita Steel Rolling Mills that waiver may be inferred from conduct evincing an intention to waive a right. Payment of the enhanced rent pursuant to the Tribunal's order was inconsistent with any intention other than waiver, so the appellant could not offset alleged overpayments against the arrears for December 2017 to April 2018.
Proof of a material damages claim for cost of repairs
The claim for cost of repairs was a special damages claim in the form of material damage; it need not be proved by receipts showing payment, and the assessor's report coupled with invoices sufficed
Restitution in integrum is the general principle in assessing damages. Following Nkuene Dairy, David Bagine and Motrex, the claimant need only show the extent of the damage and the cost of restoring it, even if repairs were never carried out. Winfield on Tort confirms the cost of repair is the normal measure for damaged chattels or premises. The High Court was therefore right to affirm the award of Kshs 182,385.20.
Whether the appellant filed a reference or a complaint before the Tribunal
The record showed a Form C titled 'Reference by Landlord or Tenant to the Tribunal' signed by the appellant's advocates, settling that a reference under section 6 was filed; section 12 deals only with powers of tribunals
Although this point was not raised before the High Court, the court perused the record of appeal and found at page 142 a Form C (rule 5) titled 'Reference by Landlord or Tenant to the Tribunal' signed by Mogaka, Omwenga & Mabeya advocates for the tenant. Section 12 of the Act deals with powers of tribunals, and references are filed under section 6. Counsel's argument that Tribunal Case No 79 of 2016 was a complaint under section 12(4) therefore failed.
Raising new issues on second appeal
An appellate court decides only issues presented before the courts below; a court cannot err on an issue never argued before it
Relying on Mary Kitsao Ngowa v Krystalline Limited, the court held that where an issue (here, reference versus complaint before the Tribunal) was not canvassed before the trial court and the High Court, the appellate court's jurisdiction is limited to issues presented before the trial court, and the learned Judge cannot be faulted for not considering a concept never argued.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law, not fact
- Where a party has referred a tenancy notice to the Tribunal, its options under section 6(1) are exhausted; it cannot issue a further tenancy notice, and after a Tribunal determination on rent, no further tenancy notice may issue on the same matters for two years
- Section 10 of the Act (effect of notice where the tenant fails to refer to the Tribunal) can only be invoked by the landlord, not the tenant
- Special damages in a material damage claim need not be shown to have actually been incurred; the claimant need only show the extent of the damage and the cost of restoration, and an assessor's report is sufficient proof
- An appellate court cannot be faulted for not considering an issue that was never argued before it
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.The judgment of the High Court is upheld
- 3.The appellant to pay the costs of this appeal and of the appeal before the High Court
- On appeal from
- High Court of Kenya (D. Chepkwony, J, sitting on first appeal)
- Civil Appeal No 135 of 2019
- Jurisdiction invoked
- Second appeal to the Court of Appeal on points of law under the Court of Appeal's appellate jurisdiction (limited to matters of law on a second appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bahari (T) Company Limited v Alibhai Ramji Investment Limited (Civil Appeal 51 of 2020) [2023] KECA 1284 (KLR)", Case Analysis (2023). Court of Appeal at Mombasa (second appeal from High Court Civil Appeal No 135 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1284/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.