Mansoft Limited & 2 others v Mutuku John Mutinga [2018] KEELC 1951 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the tribunal erred in relying on the landlord's valuation report despite finding the landlord's report had not been properly filed
The court upheld the tribunal's approach; the tenants failed to ask the tribunal to disregard the landlord's comparables, and the tribunal was entitled to adopt them in assessing the rent
The Chairman had noted the landlord's valuation report had not been filed but stated she had not been urged to disregard any of the comparables and would follow the Section 9(2) guidelines. Since the tenants never asked her to disregard any particular comparable as unsuitable, she was entitled to take all of them into consideration in assessing the open market rent.
Whether the tribunal erred in using a rate per square foot and disregarding the commercial use of the premises
The tribunal properly assessed rent on lettable area at a per-square-foot rate; the use of the premises (commercial rather than residential) properly affects rent
The tenants' valuation report failed to indicate cost per square foot in its comparables and failed to distinguish between premises let for commercial and residential purposes. Since it was not in dispute that the appellants used the premises for commercial purposes, the tribunal's approach of using the landlord's comparables expressed per square foot was not erroneous.
Whether backdating the effective date of the assessed rent to 30/1/2013 (rather than the date of the determination) was erroneous
The backdating to 1/1/2013 was not unreasonable as it covered only five months from the date of judgment; the caution in the Supa Duka Nakuru case applied to a far longer backdating of four years
The appellants relied on Munyao Sila J.'s decision cautioning against backdating rent orders. However, that case involved backdating over four years, which would be a huge unanticipated financial burden. Here the arrears would accrue for only five months from the date of judgment, which the court considered reasonable.
Legal principles established
#- A court hearing an appeal from the tribunal should not interfere unless the tribunal misdirected itself, was clearly wrong in the exercise of its discretion, and injustice has resulted
- The use to which premises are put affects the rent payable, since commercial premises are expected to fetch higher rents than residential ones
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- On appeal from
- Business Premises Rent Tribunal (BPRT), Nairobi
- Tribunal Case Numbers 286, 287 and 294 of 2011
- Jurisdiction invoked
- Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, vesting in the High Court (read the Environment and Land Court) the powers conferred on the tribunal when hearing appeals
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mansoft Limited & 2 others v Mutuku John Mutinga [2018] KEELC 1951 (KLR)", Case Analysis (2018). Civil Appeal No. 71 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1951/eng@2018-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.