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ELCAllowedNot stated in the judgment· [2016] KEELC 460 (KLR)

Real Consult Agencies Ltd v Gerald Wachira Nguthi [2016] KEELC 460 (KLR)

High Court of Kenya
5 October 2016
LWL. N. Waithaka
4,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that a tenant with an unanswered lease renewal notice deserves notice before eviction, and tribunals cannot decide disputed facts through preliminary objections.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Nyeri (L. N. Waithaka, J) from a ruling of the Business Premises Rent Tribunal. The appellant, a tenant on Plot No.5118/223 Naromoru, moved the Tribunal in January 2015 complaining that the landlord had locked the premises. The landlord raised a preliminary objection arguing that the lease had expired on 30th December 2014, that no landlord-tenant relationship subsisted, and that the tenancy was not a controlled one, so the Tribunal lacked jurisdiction. The Tribunal Chairman upheld the objection, holding there was no evidence the landlord had accepted rent after expiry, while paradoxically describing the objection as a pure point of law, and struck out the appellant's motion with costs. The appellant appealed on seven grounds, contending among other things that an unanswered renewal notice under clause 8 of the lease created a controlled tenancy. The High Court first confirmed its own jurisdiction under Section 15 of Cap 301, rejecting the argument that a 'complaint' as opposed to a 'reference' defeated the appeal, since courts must do justice without undue regard to procedural technicalities. On the merits, the court held the Tribunal's findings were irreconcilable: it had decided a disputed fact (receipt of rent) while claiming to resolve a pure point of law, contrary to the Mukisa Biscuit principle, thereby denying the appellant a fair hearing. The court further held that the unanswered renewal notice generated a legitimate expectation of reasonable notice before removal. The appeal was allowed and the orders sought in the memorandum of appeal issued in the appellant's favour.

Key legal issues

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01

Whether the High Court had jurisdiction over an appeal where the matter before the Tribunal was styled a complaint rather than a reference.

Holding

The court held it had jurisdiction; the law does not distinguish between a reference and a complaint, and justice should not be defeated by procedural technicalities.

Reasoning

The respondent argued that what was filed before the Tribunal was a complaint, not a reference, so no appeal lay. The judge examined Sections 2 and 6 of Cap 301, noting that a reference is defined as a reference to a tribunal under Section 6, but held that the label parties attach to a dispute cannot oust the court's primary duty to do justice without undue regard to procedural technicalities. Under Section 15, the court on appeal also has all the powers of the Tribunal, including determining whether a tenancy is controlled.

p. 7
02

Whether the Tribunal erred in upholding the preliminary objection as a pure point of law.

Holding

The Tribunal erred: it had based its decision on the absence of evidence of rent acceptance (a disputed factual matter), which was irreconcilable with a finding that the objection was a pure point of law.

Reasoning

The Chairman found there was no evidence that the landlord had accepted rent for at least two months after lease expiry, yet simultaneously held the preliminary objection was a pure point of law requiring no evidence. Applying Mukisa Biscuit, the court held these findings could not be reconciled: since receipt of rent was disputed and required evidence, the objection could not be sustained preliminarily. By deciding the matter on disputed evidence, the Chairman denied the appellant a fair hearing.

p. 8
03

Whether an unanswered notice of renewal under clause 8 of the expired lease created a controlled tenancy or protected the appellant's occupation.

Holding

The clause did not confer automatic renewal, but an unanswered renewal notice gave the appellant a legitimate expectation entitling it to reasonable notice before removal.

Reasoning

Clause 8 of the expired lease provided for renewal by three months' notice. The judge held that while the clause did not entitle the appellant to automatic renewal, if the appellant issued a renewal notice which the respondent did not answer, that notice gave the appellant a legitimate expectation of renewal at expiry. Even absent a new lease, that expectation would entitle the appellant to some notice time before it could reasonably be removed from the premises.

p. 8

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained or where the exercise of judicial discretion is sought.
  • The distinction between a 'complaint' and a 'reference' before the Tribunal is not a bar to the court's jurisdiction; courts should not be prevented by procedural technicalities from doing justice.
  • On a first appeal, the court has a duty to evaluate afresh the evidence adduced before the lower court and arrive at its own independent conclusion.

Court orders

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  1. 1.The orders sought in the Memorandum of Appeal were issued in the appellant's favour
  2. 2.The appellant's complaint and notice of motion were reinstated to be heard on the merits (orders sought: setting aside the Tribunal's decision and reinstating the reference)

Authorities

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Legislation

  • Land ActSection 60(2)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSection 2 (definition of controlled tenancy and reference)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSection 6(1) and 6(2)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSection 12
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSection 15(1) and 15(2)
  • Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of KenyaSection 15(2)
  • Law of Contract Act, Cap 23 Laws of KenyaSection 3(3)
  • Constitution of Kenya, 2010Article 40(2)

Cases cited (4)

  • Selle & Another vs. Associated Motor Co. Ltd & Others
    (1968) E.A. 123
  • Mukisa Biscuit Manufacturing Co. Vs. West End Distributors Ltd
    (1969) E.A 696
  • James Ngata Kimondo vs. Major Rtd Marsden Madoka & Elizabeth Mumbi Madoka
  • Silverbird Kenya Limited vs. Junction Limited & 3 others
    (2013) eKLR
On appeal from
Business Premises Rent Tribunal (BPRT)
Complaint/Reference over Plot No.5118/223 Naromoru
Jurisdiction invoked
Section 15 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 (appeal to the High Court from a Tribunal determination)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Real Consult Agencies Ltd v Gerald Wachira Nguthi [2016] KEELC 460 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/460/eng@2016-10-05

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