National Fund for The Disabled of Kenya Registered Trustee v Esquire Limited [2017] KEELC 1828 (KLR)
The bottom line
#A Kenyan landlord cannot evict an unwritten commercial tenant or force them to sign a lease; only the Rent Tribunal can end such tenancies.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant is a controlled tenant under Cap. 301
The Defendant is a controlled tenant within the meaning of the Act
Under section 2 of the Act a controlled tenancy is one which has not been reduced into writing. The Defendant's business qualifies as a 'shop', and its current tenancy is not in writing. The prior Business Premises Rent Tribunal case No. 257 of 2005, in which the Plaintiff admitted that Tribunal's jurisdiction, resulted in a determination that the Defendant is a controlled tenant, supporting this finding.
Whether the Defendant should be evicted from the suit premises
No; the High Court lacks jurisdiction over termination of controlled tenancies
Section 4(1) of the Act provides that a controlled tenancy shall not terminate or be terminated otherwise than in accordance with the Act, requiring a prescribed tenancy notice stating grounds and giving a one-month objection window under section 4(5), with a right of reference to the Tribunal under section 6(1). No such notice was served, and termination of controlled tenancies is within the Business Premises Rent Tribunal's jurisdiction, not the High Court's.
Whether the Defendant can be compelled to sign the written lease agreement
No
A cardinal principle of contract law is that a party cannot be compelled to enter into a contract of any nature. The Defendant, as a protected controlled tenant under the Act, cannot be compelled to sign the written lease agreement, since signing it would forfeit its statutory protection.
Whether the Defendant should pay the legal fees for preparation of the lease
No
It follows from the finding that the Defendant cannot be compelled to sign the lease that it cannot be compelled to pay the Kshs. 198,764/- legal fees incurred in preparing it, particularly as the Plaintiff instructed its own lawyers to prepare the agreement.
Legal principles established
#- A controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is a tenancy of a shop, hotel or catering establishment which has not been reduced into writing
- Termination of a controlled tenancy is a matter within the exclusive jurisdiction of the Business Premises Rent Tribunal and requires a prescribed tenancy notice under section 4 of the Act
- A party cannot be compelled to enter into a contract of any nature
Court orders
#- 1.The suit is dismissed
- 2.Costs of the suit are awarded to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court under the plaint procedure; subject to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Patel & another v Wonderpac Industries Limited[2023] KEELC 18785 (KLR)6 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "National Fund for The Disabled of Kenya Registered Trustee v Esquire Limited [2017] KEELC 1828 (KLR)", Case Analysis (2017). Plaint dated 11th November 2010, filed 12th November 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1828/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.