Rapid Communications Limited v Kanubhai S. Patel [2014] KEELC 150 (KLR)
The bottom line
#A Kenyan court protected a tenant from an invalid eviction notice but refused an injunction because the tenant could not prove it had been paying rent.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy was a controlled tenancy under section 2(b)(ii) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
The tenancy was a controlled tenancy: the lease was for office accommodation purposes, an office can amount to a shop under the Act, and the term was one year with provision for termination within five years
The court perused the lease whose recital provided for establishing, operating and maintaining office accommodation, rejecting the Respondent's claim that it was residential. Applying Black's Law Dictionary's definition of an office, the court found an office falls within 'shop' if services are rendered for money's worth. The undisputed business use and one-year term brought the tenancy within section 2's definition of a controlled tenancy.
Whether the termination notice was validly issued under section 4 of the Act
The termination notice was invalid as the date of termination was earlier than the earliest permissible date under section 4(4)
Clause 4(h) of the lease provided for three months' notice and the Respondent gave four months, so the notice period itself was adequate. However, the lease was to expire on 1st February 2014 while the notice purported to terminate on 1st November 2013, contrary to section 4(4), which prohibits termination earlier than the earliest date the tenancy could otherwise have been terminated. This established a prima facie case.
Whether the temporary injunction should issue
The injunction was denied because the Applicant failed to demonstrate it had been paying rent and had remained in possession after expiry of the lease on 1st February 2014
Applying Giella v Cassman Brown, the court found a prima facie case but noted that equity aids the deserving. The Applicant did not rebut averments of unpaid rent for October 2013 to January 2014 and beyond despite its advocate undertaking to file a Further Affidavit evidencing payment. It also remained in possession after lease expiry. These considerations disentitled it to the discretionary equitable remedy of an injunction.
Whether the lease agreement was a conveyancing document requiring drawing by an advocate under section 34 of the Advocates Act
It was not; tenancy agreements under the Act do not convey a registrable interest in land and need not even be in writing
The court agreed with the Respondent that section 2 of the Landlord and Tenant Act contemplates tenancies not reduced into writing and such agreements convey no registrable interest in land. They therefore fall outside the class of conveyancing documents that only qualified advocates may draw for reward under section 34(1) of the Advocates Act.
Legal principles established
#- An office can fall within the definition of a shop under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act if services offered therein are for money or money's worth
- A tenancy notice terminating a controlled tenancy cannot take effect earlier than the earliest date on which, but for the Act, the tenancy would have or could have been terminated
- Tenancy agreements under section 2 of the Act do not convey a registrable interest in land and are not conveyancing documents requiring drawing by advocates under section 34(1) of the Advocates Act
- Even where a prima facie case is established, an injunction being a discretionary and equitable remedy may be denied where the applicant has not met its own obligations, such as payment of rent
Court orders
#- 1.Declared that the tenancy of the suit premises falls within the definition of a controlled tenancy as it was for a term of one year
- 2.Denied the prayer for an injunction in the Applicant's summons dated 31st October 2013
- 3.Each party to bear their own costs of the summons
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 13 of the Environment and Land Act, with the application brought under section 12(1)(a) and 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rapid Communications Limited v Kanubhai S. Patel [2014] KEELC 150 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/150/eng@2014-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.