Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (appeal from Meru BPRT Reference No. 41A of 2015)· [2017] KEELC 378 (KLR)

Lucy Sharon Mwenda v Susan Kathure Marete [2017] KEELC 378 (KLR)

Environment and Land Court
6 December 2017
LML. N. MBUGUA
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Meru court upheld a landlord's termination notice against a saloon tenant, ruling her KSh 148,802 renovation refund claim was a contract matter the tribunal couldn't hear.

What this practically means

#

Executive summary

#
The appellant tenant, who operated a saloon on Plot No. Block 79 (B) in Meru Municipality, appealed to the Environment and Land Court at Meru against a Business Premises Rent Tribunal judgment of 15 July 2016 in Reference No. 41A of 2015, which dismissed her reference and allowed the landlord's Notice of termination dated 11 June 2015. The dispute had its roots in renovations the tenant undertook costing Sh. 148,802; when she demanded a refund or a rent offset, the landlord issued a termination notice on 13 February 2014. That first notice was found defective under section 7 of Cap 301, and in Reference No. 3 of 2014 the tribunal allowed the landlord to serve a fresh notice, which she did on 11 June 2015, prompting the second reference. The appellant raised eleven grounds, including that the landlord did not prove intention to occupy for business, that the notice was defective under section 7(1)(g), that the tribunal wrongly decided unraised issues of rent arrears, and that the tribunal should not have entertained the second reference. The respondent supported the tribunal's decision. The court held that the grounds in the notice complied with section 7 of Cap 301; that the appellant, having accepted the decision in Reference No. 3 of 2014 without appeal, could not challenge the fresh notice it authorised; and that the renovation refund claim was a matter of contract law outside the tribunal's mandate and the court's role, applying the principle that a court cannot rewrite a contract. The appeal was dismissed, stay orders were vacated and the appellant was ordered to pay the costs of the appeal.

Key legal issues

#
01

Validity of the Notice of 11.06.15 under section 7 of Cap 301

Holding

The notice was valid as its grounds are provided for under section 7 of Cap 301, and it followed the tribunal's own order in Reference No. 3 of 2014 permitting a fresh notice

Reasoning

The first notice of 13.02.14 failed to meet section 7 requirements, but the tribunal in Reference No. 3 of 2014 allowed the landlord to issue a fresh compliant notice. The landlord did so on 11.06.15. The appellant, who accepted the earlier decision without appeal, could not challenge the fresh notice that flowed from it. The court found the tribunal's judgment proper and dismissed the appeal.

p. 3
02

Renovation costs claim of Sh. 148,802

Holding

The claim is a contractual matter outside the tribunal's mandate and outside the court's role; parties are bound by their bargains

Reasoning

The fall-out between the parties arose from renovations undertaken orally, apparently with the landlord's consent. The court held these issues fall within contract law, which the tribunal could not entertain, and the court itself could not wade into the contractual obligations, citing National Bank of Kenya v Pipealastic Samkolit and Fina Bank v Spares and Industries on the sanctity of contracts.

p. 3

Legal principles established

#
  • A court of law cannot rewrite a contract between parties; parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved

Court orders

#
  1. 1.The appeal herein is dismissed
  2. 2.Any stay orders given in respect of these proceedings are hereby vacated
  3. 3.Appellant is to pay costs of this appeal

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 7; section 7(1)(g)

Cases cited (5)

  • PETERS VS SUNDAY POST LIMITED
    (1958) E.A 424
  • KIRUGA VS KIRUGA & ANOTHER
    (1988) K.L.R 348
  • LAZARO KABERE VS NDEGE MAKAU AND ANOTHER
    Civil Appeal No. 335 of 2010
  • National Bank of Kenya ltd vs. Pipealastic Samkolit (k) ltd
    (2002) EA 503
  • Fina Bank Limited Vs. Spares and Industries Ltd
    (2001) EA, 52
On appeal from
Business Premises Rent Tribunal (BPRT), Meru
Reference No. 41A of 2015
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lucy Sharon Mwenda v Susan Kathure Marete [2017] KEELC 378 (KLR)", Case Analysis (2017). Not stated in judgment (appeal from Meru BPRT Reference No. 41A of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/378/eng@2017-12-06

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