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ELCDismissedBPRTC No. 783 of 2010 (appeal therefrom)· [2017] KEELC 3246 (KLR)

Alfred Kihoro v Joseph Gitau Gacheru & another [2017] KEELC 3246 (KLR)

High Court of Kenya
25 January 2017
2,387 words in judgment
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The bottom line

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The High Court confirmed that a Kenyan tenant's own sworn statements admitting he was a subtenant can be used to justify his eviction when the landlord genuinely needs the premises.

What this practically means

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Executive summary

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This is a first appeal to the High Court against the judgment of the Chairperson of the Business Premises Rent Tribunal, Hon. D. Mochache, delivered on 10th February 2012 in BPRTC No. 783 of 2010. The respondents, as head tenants, served the appellant with a section 4(2) notice under Cap. 301 terminating his sub-tenancy on L.R No. 209/136/13 Race Course Road on the ground that they required the premises for their own business for not less than one year. The appellant, who failed to file a reference within the notice period but obtained leave to file one out of time, had his reference dismissed; the tribunal allowed the termination, ordered him to vacate by 1st April 2012, and directed refund of Kshs. 100,000/= goodwill. The appellant appealed on 12 grounds, alleging misdirection on the tenancy relationship, improper implication of terms, material non-disclosure, bias, and inadequate goodwill compensation. Justice S. Okong'o, sitting as the first appellate court, independently re-evaluated the evidence. He upheld the tribunal's finding that a landlord and tenant relationship existed, noting the appellant's own sworn affidavits describing himself as a subtenant and the respondents as head tenants, and upheld the finding that the respondents genuinely required the premises. Applying Makube v Nyamuro, he declined to interfere with the findings of fact, rejected the bias and non-disclosure allegations, and held that the goodwill award of Kshs. 100,000/= was proper as no evidence of greater goodwill was adduced. The appeal was dismissed in its entirety with costs to the respondents, and the appellant was given 120 days to vacate, failing which warrants of forceful eviction could issue.

Key legal issues

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01

Existence of landlord and tenant relationship

Holding

The tribunal's finding of a landlord and tenant relationship was correct, based on the appellant's own sworn affidavits describing himself as a subtenant and the respondents as head tenants

Reasoning

The appellant had sworn affidavits in BPRTC No. 203 of 2008 and BPRTC No. 783 of 2010 describing himself as a subtenant and the respondents as head tenants, annexing the head lease with the landlord. The appellate court held it could not fault the tribunal's finding based on those representations, and noted that absent a tenancy relationship the tribunal would have had no jurisdiction over the reference at all.

p. 3
02

Genuine need for premises under section 4(2) notice

Holding

The respondents demonstrated a genuine intention to occupy the suit premises for their own business use, justifying termination

Reasoning

The tribunal considered how the parties carried out business on the premises, the length of time they operated together, the size of the premises, the respondents' testimony on growth of their business and availability of funds for expansion. The appellate court, having independently re-evaluated the evidence as first appellate court, reached the same conclusion as the tribunal, which had the advantage of seeing and hearing witnesses.

p. 3
03

Goodwill compensation

Holding

The tribunal properly limited the goodwill award to Kshs. 100,000/=, the amount the appellant actually paid, since no evidence of greater goodwill value was adduced

Reasoning

Goodwill was a factor only in fixing the timeframe for handover, not a ground to deny the respondents possession. The appellant led no evidence of the goodwill he had built apart from asserting years of business; there was no material upon which a commensurate award could be assessed. Grounds 7 and 9 accordingly failed.

p. 4
04

Alleged bias and misdirection by the tribunal Chairperson

Holding

The Chairperson neither misapprehended the evidence nor applied wrong principles, and no bias or material non-disclosure by the respondents was established

Reasoning

The court reviewed the grounds alleging bias, misdirection and material non-disclosure and found them unsupported, being satisfied that the Chairperson considered all facts and applied the law correctly. The appeal against grounds 1, 2, 3, 4, 5, 6, 8, 10, 11 and 12 was found to lack merit, applying the Makube v Nyamuro standard for appellate interference with findings of fact.

p. 3

Legal principles established

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  • An appellate court will not interfere with findings of fact by a trial court unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles
  • A party is bound by his own prior sworn representations; the appellant's sworn statements that he was a subtenant and the respondents head tenants supported the finding of a tenancy relationship

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.The appellant shall vacate and hand over possession of the suit property within 120 days from the date of the judgment
  3. 3.In default of vacating, the respondents shall be at liberty to apply for warrants for the appellant's forceful eviction

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 4(5)

Cases cited (1)

  • Makube -vs- Nyamuro
    (1983) KLR 403
On appeal from
Business Premises Rent Tribunal
BPRTC No. 783 of 2010
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Kihoro v Joseph Gitau Gacheru & another [2017] KEELC 3246 (KLR)", Case Analysis (2017). BPRTC No. 783 of 2010 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3246/eng@2017-01-25

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