Ajeshkumar Agravat & Hasmiya V. Agravat t/a Agravat & Co v Nazerali Hassanali & 7 Others [2017] KEELC 766 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether acceptance of the old rent before the end of the quarter amounted to waiver of the rent-increment notice
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.
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.
Whether the plaint disclosed a reasonable cause of action warranting striking out
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.
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.
Whether Aroko vs Ngotho applied to the facts
Aroko vs Ngotho was distinguishable because it concerned obtaining vacant possession after expiry of a notice, with rent accepted thereafter.
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.
Legal principles established
#- 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
#- 1.The plaintiffs' suit is struck out for disclosing no reasonable cause of action
- 2.The costs of the application and of the suit are awarded to the defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.