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ELCPartially AllowedKisii BPRT Appeal (BPRT Case No. 69 of 2015)· [2018] KEELC 2745 (KLR)

Dakianga Distributors Limited v Pebo (Kenya) Limited [2018] KEELC 2745 (KLR)

High Court of Kenya
29 June 2018
JMJ. M. Mutungi
3,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan tenant who quietly hands over premises to another company loses the right to complain to the Rent Tribunal—even without a written surrender.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Kisii against the ruling of Hon. Mbichi Mboroki, Chairman of the Business Premises Rent Tribunal, delivered on 6th May 2016 in Kisii BPRT Case No. 69 of 2015. Before the Tribunal, the tenant (Pebo (Kenya) Limited, the respondent) complained that the landlord (the appellant) had arbitrarily increased rent from Kshs. 10,000/= to Kshs. 30,000/= per month and sought rent assessment, restraining orders and a declaration that its lease was valid and any lease with third parties was a nullity. The Tribunal held there was a periodic tenancy protected under Cap 301, that the rent payable remained Kshs. 10,000/= per month, and ordered each party to bear its own costs. On appeal, the landlord contended that the respondent had surrendered its lease in favour of Gerick Kenya Limited, a company associated with the respondent's directors' family, and hence lacked locus standi. Mutungi J, re-evaluating the affidavit evidence, found that from May 2015 all rent invoices were drawn to Gerick (K) Ltd at Kshs. 30,000/= and payments were made by Gerick Kenya Ltd cheques for seven months, corroborating a mutual handover notwithstanding the absence of a formal written surrender. The court held the respondent had ceased to be a tenant when the reference was filed, had no locus standi, and the Tribunal's orders were made without jurisdiction. The appeal was allowed, the Tribunal's orders set aside, the reference dismissed in its entirety, with costs of both the appeal and the reference awarded to the appellant.

Key legal issues

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01

Standard of interference by a first appellate court with the Tribunal's findings of fact

Holding

The court as first appellate court was duty-bound to re-evaluate the affidavit evidence and draw its own conclusions, but would not disturb findings of fact absent no evidence, misapprehension of evidence or wrong principles

Reasoning

Relying on Ephantus Mwangi v Duncan Mwangi Wambugu, Sellers v Associated Motor Boat Co and Jabane v Olienja, the court held that since no oral evidence had been tendered before the Tribunal, it would re-evaluate the affidavit evidence and annexures and come to its own conclusion, while noting the general caveat against interfering with trial court factual findings.

p. 3
02

Whether the respondent remained a tenant with locus standi to file the reference

Holding

The respondent had surrendered/relinquished the premises to Gerick Kenya Limited and had no locus standi when the reference was filed; the Tribunal's decision was made without jurisdiction

Reasoning

The court found that from May 2015 all rent invoices were drawn to Gerick (K) Ltd at Kshs. 30,000/= per month and payments were made by Gerick Kenya Ltd cheques for seven months, corroborating a mutual agreement that Gerick Kenya Limited would take over the premises. The absence of a formal written surrender did not displace the overwhelming evidence of relinquishment.

p. 4

Legal principles established

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  • An appellate court will not normally interfere with findings of fact by the trial court unless they are based on no evidence, a misapprehension of the evidence, or the trial court acted on wrong principles
  • The existence of a landlord and tenant relationship may be deduced from the conduct of the parties, payment of rent being one of the clearest signals

Court orders

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  1. 1.The appeal succeeds and is allowed
  2. 2.The orders made by the Hon. Chairman of the Tribunal on 6th May 2016 are set aside and substituted with an order dismissing the reference before the Tribunal in its entirety
  3. 3.The costs of this appeal and the costs of Kisii BPRT No. 69 of 2015 are awarded to the appellant as against the respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of KenyaSection 2; Section 4(2)

Cases cited (6)

  • Ephantus Mwangi & Another -vs- Duncan Mwangi Wambugu
    [1982] 1 KAR 278
  • Seller & Another –vs- Associated Motor Boat Company Ltd & Others
    1968 (EA) 123
  • Abdul Hameed Saif –vs- Ali Mohamed Sholani
    [1955] 22 EACA 270
  • Jabane –vs- Olienja
    [1986] KLR 661
  • Peters -vs- Sunday Post
    [1958] EA 424
  • Mwana Sokoni -vs- Kenya Bus Services
    [1982-88] 1 KAR 870
On appeal from
Business Premises Rent Tribunal (BPRT), Kisii
Kisii B.P Rent Tribunal Case No. 69 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dakianga Distributors Limited v Pebo (Kenya) Limited [2018] KEELC 2745 (KLR)", Case Analysis (2018). Kisii BPRT Appeal (BPRT Case No. 69 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2745/eng@2018-06-29

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