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ELCPartially AllowedNot stated in the judgment as provided· [2017] KEELC 766 (KLR)

Ajeshkumar Agravat & Hasmiya V. Agravat t/a Agravat & Co v Nazerali Hassanali & 7 Others [2017] KEELC 766 (KLR)

High Court of Kenya
6 December 2017
1,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court struck out a tenant's suit because they missed the deadline to challenge a rent increase at the Business Premises Tribunal, so the notice took effect.

What this practically means

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Executive summary

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This was a ruling on the defendants' notice of motion dated 10 February 2017 seeking to strike out the plaintiffs' plaint and dismiss the suit with costs, on the ground that the notice to increase rent dated 1 October 2012 stood unchallenged and the suit had become academic. The plaintiffs opposed, arguing that the landlord's acceptance of the old rent by cheque on 7 January 2013 waived the notice, rendering the subsequent distress for rent illegal, and that striking out would deprive them of their day in court. The court framed a single question: whether, absent a reference to the Business Premises Tribunal, the notice stood unchallenged, or whether a distinct cause of action survived based on waiver by acceptance of the old rent. The court found it undisputed that no reference was filed in time, that an application to file one out of time was dismissed, and that an appeal was struck out. Under section 10 of Cap 301, the notice therefore took effect. Acceptance of the old rent before the quarter expired did not amount to waiver because the defendants expressly communicated in February 2013 that the new rent was effective, and the distress was levied almost a month later. Aroko vs Ngotho was distinguished. Determining the notice's validity would amount to hearing a reference, which the High Court lacks jurisdiction to do. The application was allowed and the plaintiffs' suit struck out for disclosing no reasonable cause of action, with costs to the defendants in any event.

Key legal issues

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01

Whether acceptance of the old rent before the end of the quarter amounted to waiver of the rent-increment notice

Holding

Acceptance of the old rent before expiry of the quarter did not operate as a waiver, since the defendants subsequently notified the plaintiffs in February 2013 that the new rent had taken effect.

Reasoning

The court noted that the plaintiffs paid the old rent by cheque on 7 January 2013, but that the distress was levied only after the defendants' February 2013 letter asserting the new rent was effective. Because the waiver argument rested on conduct occurring before the quarter expired but was followed by an express repudiation, the court was not persuaded that the notice had been waived. Consequently the pleaded cause of action on the notice lacked substance.

p. 3
02

Whether the plaint disclosed a reasonable cause of action warranting striking out

Holding

The plaint disclosed no reasonable cause of action: the notice stood unchallenged for want of a reference, and the claim for illegal distress lacked support in law and fact.

Reasoning

It was undisputed that no reference was filed to the Business Premises Tribunal within time, and the application for extension of time was dismissed with the subsequent appeal struck out. Under section 10 of Cap 301 the notice therefore took effect. Determining the validity of the notice would amount to hearing a reference, which the High Court lacks jurisdiction to do. The illegal-distress claim also failed because the distress was levied a month after the plaintiffs were reminded the new rent was due.

p. 3
03

Whether Aroko vs Ngotho applied to the facts

Holding

Aroko vs Ngotho was distinguishable because it concerned obtaining vacant possession after expiry of a notice, with rent accepted thereafter.

Reasoning

The court distinguished the authority relied upon by the plaintiffs. In Aroko the landlord accepted rent after expiry of the notice, supporting a finding of consent to continued occupation. Here the acceptance of old rent occurred before the end of the quarter and was followed by an express communication that the new rent was effective, so the principle did not assist the plaintiffs.

p. 3

Legal principles established

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  • Under section 10 of the Landlord & Tenant Act (Cap 301), where a tenant fails to refer a notice to alter tenancy terms to the tribunal within the prescribed time, the notice takes effect from the date specified therein.

Court orders

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  1. 1.The plaintiffs' suit is struck out for disclosing no reasonable cause of action
  2. 2.The costs of the application and of the suit are awarded to the defendants

Authorities

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Legislation

  • Landlord & Tenant Act (Cap 301)Section 10
  • Landlord & Tenant Act (Cap 301)Section 6
  • Landlord & Tenant Act (Cap 301)Section 15
  • Civil Procedure RulesOrder 2 rule 15(1)(a)
  • Cap 300 (repealed)Section 56(2)

Cases cited (4)

  • Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 others
    (2009) KLR 229
  • Aroko vs Ngotho & Another
    (1991) KLR 178
  • Kiama Wangai vs John Mugambi & Another
    (2012) eKLR
  • Nurchin Bates Ltd vs Mediacom E. A Ltd & 2 others
    (2004) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court; the application was brought under Order 2 rule 15(a) of the Civil Procedure Rules

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, "Ajeshkumar Agravat & Hasmiya V. Agravat t/a Agravat & Co v Nazerali Hassanali & 7 Others [2017] KEELC 766 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/766/eng@2017-12-06

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