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ELCDismissedBPRT Appeal from Business Premises Rent Tribunal Case No. 41C of 2013 – Kisii· [2016] KEELC 823 (KLR)

Janed Oburu Odhiambo v St. Josephs Mission Hospital – Migori [2016] KEELC 823 (KLR)

High Court of Kenya
6 May 2016
JMJ. M. Mutungi
2,345 words in judgment
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The bottom line

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The High Court upheld a hospital's eviction of its canteen tenant, ruling that statutory protection against repeated eviction notices only applies after certain Tribunal cases, not all.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Kisii from the Business Premises Rent Tribunal (Case No. 41C of 2013, Chairman Mbichi Mboroki, judgment of 16th January 2015). The appellant, Janet Oburu Odhiambo, had operated a hospital canteen in the respondent's premises since 1991. After the Ministry of Public Health directed relocation of the tuberculosis clinic, the landlord served a three-month notice and a statutory notice under Section 4(2) of Cap 301 dated 14th June 2013, citing own use of the premises and rent arrears of Kshs 80,000. The tenant filed a reference under Section 6, which the Tribunal dismissed, upholding the notice and ordering her to vacate by 1st April 2015. On appeal, the appellant argued the notice was premature and illegal under Section 9(3)(b), that she was entitled to a set-off, that the notice was tainted with malice, and that the decision was against the weight of evidence. J. M. Mutungi J, applying Selle v Associated Motor Board Co and related authorities on the duty of a first appellate court, held that the prior Tribunal Case No. 38 of 2012 was a complaint under Section 12(4), not a reference, so Section 9(3)(b)'s twelve-month bar did not apply and the notice was competent. He further found the tenant had accrued rent arrears and furnished no documentary proof of any set-off, and no evidence of malice. The appeal was dismissed with costs to the respondent and the stay of execution of the Tribunal's judgment was vacated.

Key legal issues

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01

Whether the landlord's statutory notice of 14th June 2013 was premature by virtue of Section 9(3)(b) of Cap 301

Holding

The notice was competent; Section 9(3)(b) applies only to references under Section 6, not to complaints under Section 12(4), and the prior Tribunal Case No. 38 of 2012 was a complaint

Reasoning

The Tribunal and this court found that the earlier case relied on by the tenant to invoke the twelve-month bar was a complaint under Section 12(4), not a reference under Section 6(1). The statutory bar on further tenancy notices within twelve months applies only after a determination on a reference. The court agreed with the chairman's construction and held the notice dated 14th June 2013 competent in law.

p. 4
02

Whether the tenant was in rent arrears and entitled to a set-off

Holding

The Tribunal was justified in finding rent arrears and in rejecting the claimed set-off for lack of documentary proof

Reasoning

The tenant admitted arrears of Kshs 48,000 at hearing (and Kshs 80,000 at the time of the notice, later paid), and produced no documentary proof that the landlord owed her monies against which to offset the arrears. The Tribunal's finding that both grounds for termination were proved on a balance of probabilities was well founded and the court saw no basis to interfere.

p. 5

Legal principles established

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  • A complaint filed under Section 12(4) of Cap 301 is not a reference under Section 6 of the Act, and the limitation in Section 9(3) on issuing further tenancy notices after a determination applies only to references
  • The Tribunal exercises distinct jurisdictions under Sections 6(1) and 12(4) of Cap 301, and the jurisdiction is defined by statute and must be exercised strictly as provided

Court orders

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  1. 1.The appellant's appeal is dismissed with costs to the respondent
  2. 2.The order staying execution of the judgment of the tribunal is vacated

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 6(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 9(3)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 9(3)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 12(4)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 15(1)

Cases cited (5)

  • Selle –vs- Associated Motor Board Co.
    [1968] E. A 123
  • Jabane –vs- Olenya
    [1986] KLR 661, 664
  • Ephantas Mwangi –vs- Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Mwanasokoni –vs- Kenya Bus Services
    [1982-88] 1 KAR 870
  • Choitram –vs- Mystery Model Hair Saloon
    [1972] EA, 525
On appeal from
Business Premises Rent Tribunal
41C of 2013 – Kisii
Jurisdiction invoked
Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) – appeal from a Tribunal determination on a reference to the High Court

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, "Janed Oburu Odhiambo v St. Josephs Mission Hospital – Migori [2016] KEELC 823 (KLR)", Case Analysis (2016). BPRT Appeal from Business Premises Rent Tribunal Case No. 41C of 2013 – Kisii. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/823/eng@2016-05-06

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