Fairmont Mount Kenya Safari Club v Jenniffer Wambui Nyakinyua [2017] KEELC 3667 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Business Premises Rent Tribunal
The Tribunal had jurisdiction under Section 12(1) of Cap 301 to determine whether a tenancy existed and whether it was a controlled one; the appellant's challenge was really to the merits, not jurisdiction.
The court held that the Tribunal's jurisdiction is conferred by statute and does not depend on the circumstances of the particular case. Section 12(1) empowers it to determine whether any tenancy is controlled and to make possession and arrears orders applicable to any person in occupation. Any complaint about the Tribunal's conclusion went to the correctness of its decision on the evidence, not to its jurisdiction.
Locus standi of the respondent
The respondent had locus standi to bring the complaint as a person in use and occupation of the premises, not as a representative of her deceased mother's estate.
There was evidence the respondent was in use and occupation of the suit premises. She therefore did not need letters of administration to her mother's estate to complain; she sued in her own right as an occupant. The court also noted the landlord had not demanded letters of administration.
Existence of a controlled tenancy
The evidence of long occupation, exclusive possession, payment of Kshs. 400/- per month supported by receipts, and conversion of the value of a broken drier into rent supported the Tribunal's finding of a controlled tenancy rather than a licence.
The court found the parties' conduct inconsistent with a mere licence: the respondent had exclusive use and possession for a long period, the appellant did not controvert her explanation that she continued paying her mother's rate of rent, did not deny issuing the receipts or explain what the payments were for, and did not deny the agreement to convert the value of the broken drier into rent.
Fairness of the Tribunal proceedings
The allegation that the Tribunal conducted proceedings unfairly was unsupported; there was no evidence that the record differed from what was urged, no objection to the proceedings, and no denied plea for leave to file a further affidavit.
The court reviewed the record and found no evidential basis for the complaint that the Chairperson misrecorded a concession or shut out the appellant's evidence. Absent an objection or a refused application on the record, the allegation of unfairness failed.
Award of costs by the Tribunal
The Tribunal was empowered to award costs and the award of Kshs. 25,820/- was not so excessive as to warrant interference.
Section 12(1)(k) of Cap 301 empowers the Tribunal to award costs in respect of references before it. The appellant produced no evidence that the assessment was inordinately high, so the appellate court declined to interfere with the discretionary award.
Legal principles established
#- A controlled tenancy does not terminate on its own, including on the death of a tenant, and can only be terminated or have its terms altered by a statutory notice in the prescribed form under section 4 of Cap 301.
- A person in use and occupation of premises may bring a claim before the Tribunal in their own right without letters of administration to a deceased prior tenant.
- Under Section 12(1) of Cap 301 the Tribunal has power to determine whether or not any tenancy is a controlled one, irrespective of the particular dispute presented.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Business Premises Rent Tribunal
- Complaint filed 5th August 2011
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fairmont Mount Kenya Safari Club v Jenniffer Wambui Nyakinyua [2017] KEELC 3667 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3667/eng@2017-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.