Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case, Busia (plaint dated 8/6/2017, filed 12/6/2017) - number not stated in judgment· [2018] KEELC 183 (KLR)

Kaka Mohamed v Mohamed Ali [2018] KEELC 183 (KLR)

Environment and Land Court of Kenya
11 December 2018
AKA. K. Kaniaru
1,679 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Busia court struck out an eviction suit because disputes over unwritten business tenancies must first go to the Rent Restriction Tribunal under Kenyan law.

What this practically means

#

Executive summary

#
This is a ruling on a preliminary objection filed on 19/11/2017 in a suit by Kaka Mohamed against his tenant, Mohamed Ali, seeking eviction from rental premises on land parcel North Teso/Kocholia/1026 at Amagoro, a mandatory injunction to vacate, rent arrears, costs and interest. The defendant raised two objections: that the court lacked jurisdiction because the tenancy was a controlled tenancy reserved to the tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), and that the plaintiff lacked capacity to sue since the land was said to belong to one Fatuma Muzfural Bacho. The court declined to rely on a second set of submissions and a supplementary affidavit filed by the plaintiff without leave and without service. On jurisdiction, the court held that where no written agreement exists the tenancy is a controlled tenancy under Section 2(1) of cap 301, and the tribunal under that Act, not the ELC, is the first port of call; such matters reach the ELC only on appeal. The defendant was held right on this limb. On capacity, however, the defendant was wrong: under Section 121 of the Evidence Act (cap 80) and the doctrine of estoppel, a tenancy may exist even where the landlord has no title, and a tenant who has dealt with and paid rent to the plaintiff cannot later deny the tenancy. The preliminary objection succeeded only on jurisdiction, and the entire suit was struck out as instituted in the wrong forum, with costs in the cause. Dated, signed and delivered at Busia on 11 December 2018 by A. K. Kaniaru, Judge.

Key legal issues

#
01

Whether the ELC has jurisdiction over a dispute concerning an oral (controlled) tenancy

Holding

The court lacks jurisdiction; the dispute belongs to the tribunal under cap 301 and the suit was filed in the wrong forum

Reasoning

Under Section 2(1) of cap 301, a tenancy not in writing is a controlled tenancy. No written agreement was availed, so the tenancy between the parties is controlled. Grievances relating to such tenancies must first go to the tribunal established under the Act; the ELC is not that tribunal and may only hear such matters on appeal. The authorities cited by the defendant supported this approach.

p. 2
02

Whether the Plaintiff, as a non-title-holder, lacked capacity (locus standi) to sue

Holding

The Plaintiff had capacity; a tenancy can exist where the landlord has no title, and the tenant was estopped from denying the tenancy

Reasoning

Section 121 of the Evidence Act (cap 80) provides that the landlord-tenant relationship may be brought into being even where the landlord has no title, and estoppel operates between landlord and tenant. The defendant had dealt with the plaintiff as his landlord and paid rent to him, so he could not point to another person as landlord or challenge the plaintiff's title. The preliminary objection failed on this limb.

p. 2

Legal principles established

#
  • Where a tenancy is a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), the first port of call is the tribunal established under that Act, and the ELC may only entertain such matters on appeal
  • A tenancy relationship can legally exist even where the landlord has no title to the property; a tenant who has paid rent cannot later deny the tenancy (Section 121, Evidence Act, cap 80)

Court orders

#
  1. 1.The suit is struck out on jurisdictional grounds as it was instituted at the wrong forum
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2(1)
  • Evidence ActSection 121
  • Environment and Land Court Act
  • Constitution of Kenya

Cases cited (4)

  • Joseph Njuguna Mwaura & others v Republic
    CA Cr. Appeal No. 5 of 2008, Nairobi
  • Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd
    ELC Case No. 287 of 2014, Kerugoya [2015] eKLR
  • Anisminic Ltd v Foreign Compensation Commission & Another
    [1969] 1 All ER 208
  • Halsbury, Laws of England, 3rd Edition, Vol. 15
    paragraphs 454-455
Jurisdiction invoked
Environment and Land Court Act; the court considered whether the dispute falls within its jurisdiction given the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kaka Mohamed v Mohamed Ali [2018] KEELC 183 (KLR)", Case Analysis (2018). ELC Case, Busia (plaint dated 8/6/2017, filed 12/6/2017) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/183/eng@2018-12-11

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