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ELCDismissedELC Civil Appeal No. 131 of 2016· [2017] KEELC 2816 (KLR)

Roshanali Sherali Jivraj v Muvavara A. Gulamhussein & 2 others [2017] KEELC 2816 (KLR)

Environment and Land Court
25 May 2017
1,773 words in judgment
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The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa against a decision of the Rent Restriction Tribunal of 18 May 2015 assessing standard rent over residential premises. The landlord appellant raised six grounds, including lack of authority of the 2nd Respondent to act for the other landlords, defectiveness of the Respondents' application for want of disclosure of cost of construction, the Tribunal's disregard of the appellant's valuer's report, and reliance on the Sayed Abdalla authority. The Respondents countered with a technical objection that the appellant's incoming advocates had not complied with Order 9 rule 9 of the Civil Procedure Rules. The court disposed of both technical objections first: it held that Order 9 rule 9 does not apply to an appeal, which is independent of the concluded proceedings, and that the authority objection failed because all three co-registered landlords signed the claim, making Order 1 rule 12 unnecessary and distinguishing Ndungu Mugoya. On the merits, the court held that section 3(2) of the Rent Restriction Act (Cap 296) confers discretion on the Tribunal to determine standard rent within statutory guidelines where the yield would be uneconomic. Since the appellant's own valuer conceded the recommended rent was below market rates of comparable premises, the Tribunal committed no error in adopting the Respondents' valuation report. The Sayed Abdalla decision merely amplified section 3(2). The appeal was dismissed with costs to the Respondents and the Tribunal's decision upheld.

Key legal issues

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01

Proper representation on record after judgment in the tribunal proceedings

Holding

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

Reasoning

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.

p. 2
02

Authority of the 2nd Respondent to act for the other landlords before the Tribunal

Holding

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

Reasoning

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.

p. 3
03

Assessment of standard rent under section 3(2) of Cap 296 and reliance on the Respondents' valuation

Holding

The Tribunal acted lawfully in exercising its discretion and adopting the Respondents' valuation report giving an improved rent

Reasoning

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).

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The decision of the Rent Restriction Tribunal of 18th May 2015 is upheld

Authorities

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Legislation

  • Rent Restriction Act (Cap 296)section 3(2)
  • Rent Restriction Act (Cap 296)section 3(2)(a)(iv)
  • Rent Restriction Act (Cap 296)section 3(2)(b)
  • Rent Restriction Act (Cap 296)section 5(1)(a)
  • Civil Procedure RulesOrder 1 rule 13(2)
  • Civil Procedure RulesOrder 1 rule 12
  • Civil Procedure RulesOrder 9 rule 9

Cases cited (4)

  • Sayed Abdalla vs Mustafa Ebrahimjee & others
    HCC 123 of 2008
  • Ndungu Mugoya & 473 Others vs Stephen Wangombe & 9 Others
    HCCC No. 142 of 2005 - Nairobi (also referred to as Nakuru Civil Case No 141 of 2005)
  • Shaukat M. Kassam vs Said Bin Seif Properties Ltd
    HCCA No. 107 of 2000 - Mombasa, eKLR
  • Maurice Nabikliki Wata vs Anna Nekesa & 5 others
    (2015) eKLR
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

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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, "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.