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ELCPartially Allowed· [2017] KEELC 3602 (KLR)

Amos Keireri Kanyugo v Kireithi Trust [2017] KEELC 3602 (KLR)

High Court of Kenya (Environment and Land Division, Nyeri)
16 January 2017
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court ruled that landlords cannot lock out tenants without notice, and tenants can get injunctions from the High Court even for rent-controlled tenancies.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 3rd November 2016 seeking an order compelling the defendant, Kireithi Trust, to re-open shop No. G12 at Tabby Plaza on L.R No. Nyeri Municipality/Block 3/68, which the defendant had allegedly locked unlawfully. Together with the plaint the plaintiff sought an interlocutory order to re-open the shop pending arbitration or determination of the suit, and a temporary injunction restraining interference with his tenancy. The defendant raised a preliminary objection contending that the lease was invalid and unsigned, that the court lacked jurisdiction as a court of first instance over a controlled tenancy, and that the plaintiff should have gone to the Business Premises Rent Tribunal. Relying on Moses N. Gitonga v Gatheca Kinyanjui, Baby Steps Kindergarten v Hasham Lalji and Narshidas v Nyali Air Conditioning, the court held that the Tribunal has no jurisdiction to grant injunctions and that the superior court may entertain such claims notwithstanding Cap. 301. It found a tenancy existed from the letters of 21st October 2016 and the notice of 28th October 2016, and that locking the premises without notice, or before lapse of notice, contrary to Section 57 of the Land Act, was unjustified and unlawful. The preliminary objection was dismissed with costs, and orders under prayers (2) and (3) of the motion were granted pending hearing of the suit, the filing of a defence having taken away the right to arbitrate.

Key legal issues

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01

Whether the High Court lacks jurisdiction over a controlled tenancy dispute at first instance

Holding

The objection was overruled; the court may grant injunction notwithstanding the BPRT mechanism

Reasoning

Relying on Moses N. Gitonga v George Gatheca Kinyanjui and Narshidas v Nyali Air Conditioning, the court held that Cap. 301's inbuilt dispute-resolution mechanism does not cover equitable reliefs such as injunctions. A controlled tenant facing illegal forcible eviction need not go to the BPRT; the superior court may entertain and grant injunctive relief. The objection was therefore overruled.

p. 3
02

Whether a tenancy agreement existed between the parties

Holding

Yes, a tenancy existed based on the letters dated 21st October 2016 and the notice dated 28th October 2016

Reasoning

The court examined the documents annexed to the supporting affidavit, including the respondent's letter of 21st October 2016 acknowledging the applicant as its tenant and the notice dated 28th October 2016. From these it had no doubt a tenancy existed between the parties, despite the lease not being signed by the respondent.

p. 3
03

Whether locking the premises without notice or before lapse of notice was lawful

Holding

The locking/termination was unjustified and unlawful

Reasoning

Based on the uncontroverted evidence that the defendant locked the suit property, and Section 57 of the Land Act requiring notice before termination of a periodic tenancy, the court found the defendant's conduct of locking/terminating the tenancy without notice, or before lapse of the notice issued, to be unjustified and unlawful.

p. 3

Legal principles established

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  • The High Court has jurisdiction to entertain an application for injunction even where the landlord-tenant dispute falls under Cap. 301, because the Tribunal has no jurisdiction to grant injunctive relief

Court orders

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  1. 1.Dismissal of the defendant/respondent's notice of preliminary objection with costs to the plaintiff
  2. 2.An order compelling the respondent to immediately re-open the shop pending hearing and determination of the suit (prayer 2)
  3. 3.A temporary injunction restraining the respondent from closing, blocking or interfering with the plaintiff's tenancy pending hearing and determination of the suit (prayer 3)

Authorities

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Legislation

  • Landlord, Tenant, Shops, Hotels and Catering Establishment ActCap. 301
  • Land ActSection 57

Cases cited (5)

  • Moses N. Gitonga & another v George Gatheca Kinyanjui & another
    [2014] eKLR
  • S. N. T/A Baby Steps Kindergarten v Hasham Lalji Properties Ltd & Another
    [2008] eKLR
  • Narshidas & Company Ltd v Nyali Air Conditioning and Refrigeration Services Ltd
    CA 205/1995
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mukisa Biscuits case
Jurisdiction invoked
Inherent jurisdiction of the High Court over landlord-tenant disputes; jurisdiction exercised notwithstanding Cap. 301 dispute-resolution mechanism

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Amos Keireri Kanyugo v Kireithi Trust [2017] KEELC 3602 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3602/eng@2017-01-16

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