Grace Muthoni Mahindi (Suing As The Personal Representative Of The Estate Of Jackson Mahindi Gitonga) v Andrew Kimani & 2 others [2015] KEELC 147 (KLR)
The bottom line
#The High Court confirmed that a tenant's death does not end a protected tenancy, landlords cannot repossess through illegal distress, and distrained goods must be returned.
What this practically means
#Executive summary
#Key legal issues
#Whether the stay order of Okwengu J. of 29/10/2009 was still in force
The consent order recorded before Angawa J. on 20/2/2012, providing that the appellant continue paying rent at Kshs.155,000/= pending the hearing and determination of the appeal, extended the stay order until determination of the appeal; it has never been varied or set aside.
The stay granted by Okwengu J. was conditional and subject to extension. It was extended successively by Sitati J. and Onyancha J. The consent order of 20/2/2012 fixing rent at Kshs.155,000/= until the appeal is heard and determined operated as an extension of the stay. That consent order remains unvaried and unset aside, so the tribunal's decree at the enhanced rent remains stayed and the deceased's 9/5/2014 extension application was superfluous.
Whether the respondents were entitled to levy distress and whether it was lawfully levied
The distress was illegal, being in breach of the court's consent order fixing rent at Kshs.155,000/=, and irregular for non-compliance with the Auctioneers Rules, 1997.
The respondents demanded and distrained for the deficit between the tribunal rent of Kshs.253,600/= and the consented rent of Kshs.155,000/=, recovery of which was stayed. Further, the goods were removed without prior proclamation as required by Rule 12(b) of the Auctioneers Rules, 1997, an irregularity which, following Lakeland Motors Ltd v Harbhajan Singh Sembi, renders execution liable to be set aside. The applicant's alleged intention to flee did not justify the action.
Whether the applicant should be substituted for the deceased appellant
Yes. The cause of action survives the deceased since a tenancy does not determine on the death of the tenant, and the objection based on the wording of the prayer was a technicality to be ignored under Article 159(2)(d).
The respondents argued the prayer was improperly worded and that the tenancy died with the deceased. The court held the objection went to form, not substance, and should be ignored under Article 159(2)(d). Relying on Waljee v Rose as cited in Robert Nderitu Gitonga v Alice Kerubo Nyambati, the court held that a controlled tenancy rests in the legal personal representatives, and since the applicant was duly appointed and the cause of action survived, substitution under Order 24 of the Civil Procedure Rules was proper.
Whether the respondents' repossession and leasing of the suit property was lawful
No. Possession of a controlled tenancy cannot be obtained through distress for rent, and the purported repossession and letting to Milton Chege Kimani was unlawful.
Termination of a controlled tenancy requires strict compliance with section 4 of Cap 301. Having taken possession through an illegal distress carried out in defiance of the stay order, the respondents could not pass a lawful tenancy to a third party, and the court invoked its power to safeguard and protect its process by halting the eviction through injunction.
Legal principles established
#- The death of a tenant does not terminate a tenancy relationship; a controlled tenancy vests in the legal personal representatives unless otherwise agreed
- Possession of a controlled tenancy can only be acquired through the procedure laid down under section 4 of Cap 301
- Goods distrained for rent cannot be removed before a proclamation is made and the tenant given time to pay; non-compliance renders execution liable to be set aside
- The court is enjoined to disregard procedural technicalities in favour of substantive justice
Court orders
#- 1.Application dated 16/7/2014 allowed in terms of prayers 2 and 5
- 2.Applicant Grace Muthoni Mahindi substituted in the appeal in place of the deceased appellant until the hearing and determination of the appeal and any appeal against decisions made herein, so long as she is alive and not incapacitated
- 3.Temporary injunction restraining the respondents from taking possession, alienating, leasing, interfering with fixtures or dealing with the suit property otherwise than in compliance with Cap 301 pending the hearing and determination of the appeal
- 4.Applicant's movable properties unlawfully distrained by Pyramid Auctioneers on the instructions of the respondents to be restored or returned to the applicant forthwith
- 5.Applicant granted the costs of the application
- On appeal from
- Business Premises Rent Tribunal
- Reference filed 25/8/2008
- Jurisdiction invoked
- Appellate jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 over tribunal decisions; interlocutory application under Order 24 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Muthoni Mahindi (Suing As The Personal Representative Of The Estate Of Jackson Mahindi Gitonga) v Andrew Kimani & 2 others [2015] KEELC 147 (KLR)", Case Analysis (2015). High Court Civil Appeal (from Business Premises Rent Tribunal) - Notice of Motion dated 16th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/147/eng@2015-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.