Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment (High Court suit; PO dated 16/10/2014)· [2015] KEELC 524 (KLR)

Daniel Mwangi & 6 others v Sayani Investment Limited & 3 others [2015] KEELC 524 (KLR)

High Court of Kenya
22 April 2015
JOJ. L. Onguto
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The High Court ruled it had no jurisdiction over a tenancy dispute lacking a properly written and witnessed contract, transferring the case to the Rent Tribunal.

What this practically means

#

Executive summary

#
The 1st and 3rd Defendants raised a preliminary objection dated 16 October 2014 to the entire suit, contending that the High Court lacked jurisdiction over the landlord-tenant dispute under Sections 2(1)(a) and 6(1) of Cap 301, that the Plaintiffs were already interested parties in BPRT Nos. 971-974 of 2012 creating parallel proceedings, and that the suit was an abuse of process warranting striking out. The Plaintiffs opposed, asserting a written Memorandum of Tenancy for 5 years 3 months commencing 18 November 2011 and their right to due process. Onguto J examined the documents relied upon: a 6 September 2010 letter appointing the 2nd Defendant as collecting agent, which did not authorize sub-letting, and an 18 November 2011 letter from the 2nd Defendant to all tenants, which was held not to satisfy Section 38(1) of the Land Act requiring a written contract for disposition of an interest in land, signed by all parties and attested by a witness, 'disposition' including a lease. The court held that absent a formal executed and attested contract it was divested of jurisdiction. It further found, uncontested, that the Plaintiffs had already sought the intervention of the Business Premises Rent Tribunal as affected parties, and that the tribunal was the appropriate forum, capable of being appealed to the High Court. The preliminary objection was upheld but the suit was not struck out; it was transferred to the BPRT to be determined alongside BPRT Cases Nos. 971, 972, 973 and 974 of 2012, with costs of the objection awarded to the Defendants.

Key legal issues

#
01

Whether the Plaintiffs' claimed 5-year 3-month tenancy conferred jurisdiction on the High Court

Holding

The claimed 'Memorandum' was merely a letter by the 2nd Defendant and failed the writing, signing and attestation requirements of Section 38(1) of the Land Act, so no enforceable contract existed to found the suit

Reasoning

The court examined the letters relied on: the 6/9/2010 letter only appointed the 2nd Defendant as collecting agent without authorizing sub-letting, and the 18/11/2011 letter was authored by the 2nd Defendant to all tenants, not a contract signed by all parties and attested as Section 38(1) demands. Since 'disposition' under Section 2 of the Land Act includes a lease, the claimed sub-tenancy could not vest jurisdiction in the High Court.

p. 3
02

Whether the BPRT proceedings rendered the suit an abuse of process or barred the court

Holding

There was already a competent alternate forum before the BPRT where the Plaintiffs appear as interested/affected parties; the suit was accordingly transferred rather than struck out

Reasoning

The court found the Plaintiffs had approached the BPRT as affected parties, a fact uncontested by their counsel. Following Lord Denning in Attorney General of Gambia v Njie, they are entitled to appear with genuine concerns, not as mere observers. The tribunal is best placed to adjudicate, with a possible appeal to the High Court, so the suit was transferred to be heard with BPRT Nos. 971-974 of 2012.

p. 3

Legal principles established

#
  • No suit may be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties and attested by a witness, as required by Section 38(1) of the Land Act
  • In the absence of a formal, executed and attested contract for disposition of land, the court's jurisdiction over the dispute is divested

Court orders

#
  1. 1.The 1st and 3rd Defendants' preliminary objection upheld
  2. 2.The suit NOT struck out
  3. 3.The suit transferred to the Business Premises Rent Tribunal to be determined alongside BPRT Cases No. 971, 972, 973 and 974 of 2012
  4. 4.Defendants awarded costs of the Preliminary Objection

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 2(1)(a), 6(1), 12(1)(a)
  • Land ActSections 2, 38(1)

Cases cited (1)

  • Attorney General of Gambia –v- Njie
    [1961] 2 All ER 504
Jurisdiction invoked
Inherent jurisdiction of the High Court on preliminary objection under civil procedure; dispute of tenancy under Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Daniel Mwangi & 6 others v Sayani Investment Limited & 3 others [2015] KEELC 524 (KLR)", Case Analysis (2015). Not stated in judgment (High Court suit; PO dated 16/10/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/524/eng@2015-04-22

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