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ELCStruck OutNot stated in judgment· [2014] KEELC 594 (KLR)

Kangatta Properties Co Ltd v Charity Njeri t/a Winacom Crossline Supplies & 4 others [2014] KEELC 594 (KLR)

High Court of Kenya
30 June 2014
JMJ.M. MUTUNGI
3,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landlord lost its eviction case in the High Court because the lease renewal letter wasn't properly signed and witnessed, so the tenants must be dealt with at the Rent Tribunal.

What this practically means

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Executive summary

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The plaintiff, Kangatta Properties, the registered owner of L.R. No. 209/2275 (J.K. Plaza), filed a Notice of Motion on 27th March 2013 seeking a mandatory order compelling the defendants to surrender vacant possession of premises they occupied, and liberty to evict them at their own cost. The plaintiff contended the defendants held under letters of offer dated 28th February 2007 granting a five-year-and-one-month tenancy which lapsed on 28th February 2013 without renewal. The defendants raised a preliminary objection arguing lack of jurisdiction, that the matter fell within the Business Premises Rent Tribunal under Cap 301 as a controlled tenancy, and that the plaintiff lacked locus standi. The court framed four issues: compliance with section 3(3) of the Law of Contract Act, whether the defendants were controlled tenants, the court's jurisdiction, and the plaintiff's locus standi. It held that the letter of offer, being a contract for disposition of an interest in land, required writing, signature by all parties and attestation under section 3(3), none of which was satisfied, rendering the agreement unenforceable. Consequently the defendants were controlled tenants under Cap 301 and the Tribunal, not the High Court, had jurisdiction. The plaintiff's locus standi as registered owner was nonetheless upheld. The preliminary objection was upheld, the Notice of Motion and the entire suit were struck out, with costs awarded to the defendants.

Key legal issues

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01

Compliance with section 3(3) of the Law of Contract Act

Holding

The letter of offer of 28th February 2007 was a contract for disposition of an interest in land requiring written execution and attestation; it did not comply and was unenforceable

Reasoning

The letter was headlined 'Lease Renewal' for a term of 5 years and 1 month, hence a disposition of an interest in land. Section 3(3) requires the contract to be in writing, signed by all parties with signatures attested by a witness. The defendants never endorsed acceptance on the letter and no signatures were attested. The plaintiff also could not clarify the 'other terms and conditions' said to remain the same. Non-compliance barred the suit.

p. 5
02

Whether the defendants are controlled tenants under Cap 301

Holding

Yes - since the agreement is unenforceable, the defendants are controlled tenants under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

Reasoning

Having found no enforceable lease, the tenancy falls within the definition of a controlled tenancy under section 2 of Cap 301 - a tenancy not reduced into writing or for a period not exceeding five years. The plaintiff is therefore obliged to deal with the defendants as controlled tenants under that Act, and the Tribunal established under it is the proper forum.

p. 5
03

Jurisdiction of the court

Holding

The court has no jurisdiction; the dispute belongs to the Business Premises Rent Tribunal

Reasoning

Since the suit is founded on a contract barred by section 3(3) of the Law of Contract Act, the court cannot entertain it. Further, the defendants being controlled tenants, the Tribunal under Cap 301 has jurisdiction. Following Motor Vessel 'Lilian S', jurisdiction had to be determined first because proceedings without jurisdiction are a nullity.

p. 5
04

Locus standi of the plaintiff

Holding

The plaintiff, being the registered owner of the suit property, had locus standi

Reasoning

The court found the plaintiff is the registered owner of L.R. No. 209/2275 following a transfer registered on 28th October 2002, and the letter of 28th February 2007 was written and signed for and on behalf of the plaintiff. As registered owner suing tenants in its property, the plaintiff had locus standi. This limb of the preliminary objection failed.

p. 6

Legal principles established

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  • A contract for the disposition of an interest in land must comply with section 3(3) of the Law of Contract Act - be in writing, signed by all parties with signatures attested - and non-compliance divests the court of jurisdiction to entertain a suit founded on it
  • Where a lease agreement does not comply with section 3(3) and is unenforceable, the occupants are controlled tenants under Cap 301 and the Business Premises Rent Tribunal has jurisdiction
  • A court must determine jurisdiction as a preliminary issue whenever raised, since proceedings without jurisdiction are a nullity

Court orders

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  1. 1.The preliminary objection by the Defendants is upheld
  2. 2.The plaintiff's Notice of Motion dated 27th March 2013 is struck out
  3. 3.The plaintiff's suit is struck out
  4. 4.Costs of the application and the struck out suit awarded to the defendants

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301, section 2
  • Law of Contract ActCap 23, section 3(3)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301, section 6

Cases cited (6)

  • Owners of Motor Vessel “Lilian S” vs Caltex Oil (K) Ltd
    C.A. No. 50 of 1989, Mombasa (1989 KLR)
  • Silverbird Kenya Limited vs Junction Limited and 3 others
    (2013) eKLR
  • Narok County Council vs Transmara County Council & Ano.
    (2000) eKLR
  • Speaker National Assembly vs Karume
    Nairobi Civil Appeal No. 94 of 2005
  • Kimani Wanyoike vs Electoral Commission & Ano.
    (1995) eKLR
  • Bachelor's Bakery Ltd vs Westlands Securities Ltd
    Civil Appeal No. 2 of 1978 (1982) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court; jurisdiction challenged under Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 and Law of Contract Act Cap 23 s 3(3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kangatta Properties Co Ltd v Charity Njeri t/a Winacom Crossline Supplies & 4 others [2014] KEELC 594 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/594/eng@2014-06-30

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