Roshanali Sherali Jivraj v Muvavara A. Gulamhussein & 2 others [2017] KEELC 2816 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landlord's rent appeal, confirming the Rent Restriction Tribunal can set standard rent and that appeals aren't bound by post-judgment lawyer-change rules.
What this practically means
#Executive summary
#Key legal issues
#Proper representation on record after judgment in the tribunal proceedings
The firm of Ms G. A Okumu & Co. is properly on record because Order 9 rule 9 applies only to proceedings after judgment within the same cause, not to an independent appeal
The court held that an appeal is a process independent of the previous proceedings; judgment was entered in the Tribunal, and the appeal had yet to be determined, so Order 9 rule 9 could not apply. The Maurice Nabikliki case relied on by the Respondents was distinguishable because there the application was made in the same cause in which judgment had been granted.
Authority of the 2nd Respondent to act for the other landlords before the Tribunal
The objection failed: all three Respondents signed the claim, the 2nd Respondent is a co-registered owner, and Order 1 rule 12 was therefore unnecessary
The court perused the record and found the application before the Tribunal bore three signatures designated as Landlords, the title deed in the three names was annexed to the application of 28 September 2012, and the Respondents' valuer was instructed by all three landlords. The case was distinguishable from Ndungu Mugoya, where the verifying affidavit lacked written authority.
Assessment of standard rent under section 3(2) of Cap 296 and reliance on the Respondents' valuation
The Tribunal acted lawfully in exercising its discretion and adopting the Respondents' valuation report giving an improved rent
Section 3(2) of Cap 296 gives the Tribunal discretion to determine standard rent where the yield would be uneconomic, within the guidelines of section 3(2)(b). Both valuation reports were before the Tribunal. The appellant's own valuer conceded the recommended rent was lower than the market rate of similar premises, so there was no fault in adopting the report giving an improved rent; Sayed Abdalla merely amplified section 3(2).
Legal principles established
#- Order 9 rule 9 of the Civil Procedure Rules does not apply to an appeal, as the appeal process is independent of the proceedings in which judgment was entered
- Where all joint registered owners signed the claim before the Tribunal, written authority under Order 1 rule 12 of the Civil Procedure Rules is unnecessary
- The Rent Restriction Tribunal has discretion in determining standard rent, exercised within the guidelines of section 3(2)(b) of Cap 296
Court orders
#- 1.The appeal is dismissed with costs to the Respondents
- 2.The decision of the Rent Restriction Tribunal of 18th May 2015 is upheld
- On appeal from
- Rent Restriction Tribunal
- Jurisdiction invoked
- First appeal from the Rent Restriction Tribunal pursuant to the Rent Restriction Act (Cap 296)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roshanali Sherali Jivraj v Muvavara A. Gulamhussein & 2 others [2017] KEELC 2816 (KLR)", Case Analysis (2017). ELC Civil Appeal No. 131 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2816/eng@2017-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.