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ELCDismissedKisii B.P Rent Tribunal Case No. 30B of 2012 (Appeal)· [2018] KEELC 2915 (KLR)

Zacharia Boera v Grace Makori [2018] KEELC 2915 (KLR)

High Court of Kenya
22 June 2018
JMJ. M. Mutungi
2,208 words in judgment
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The bottom line

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A Kenyan court upheld a landlord's right to end a hotel tenant's lease for major repairs, and refused to hear new arguments raised only on appeal.

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 from the judgment of Hon. Mbichi Mboroki, Chairman of the Business Premises Rent Tribunal, delivered on 5th December 2014 in BPRT Case No. 30B of 2012. The Tribunal had dismissed the tenant's reference and allowed the landlord's termination notice issued under Section 4(2) of Cap 301 on the ground of intended renovation of the leaking roof, ordering the tenant to deliver vacant possession by 31st December 2014, with costs to the landlord. The appellant raised five grounds: misdirection on law and fact; the respondent's alleged lack of locus standi as she was not the registered proprietor; the decision being against the weight of evidence, including that the repairs did not constitute substantial work under Section 7(1)(f) and the landlord's evidence was uncorroborated contrary to Sections 107-109 of the Evidence Act; improper exercise of discretion under Section 9(1)(a); and the costs and vacatur orders. Mutungi J restated the standard that a first appellate court re-evaluates the evidence but does not disturb findings of fact absent wrong principle or misapprehension of evidence, citing Ephantus Mwangi v Duncan Mwangi Wambugu. The court found the chairman had properly evaluated the evidence, noting the tenant's own 2011 complaint about the leaking roof (BPRT No. 49 of 2011), the Municipal Council's repair notice of 10th March 2012, and the absence of repairs since 1980. The locus standi ground failed as it was raised for the first time on appeal. The appeal was dismissed with costs to the respondent on 22nd June 2018.

Key legal issues

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01

Standard of interference on a first appeal

Holding

The court is obliged to re-evaluate the evidence but will not interfere with findings of fact unless the trial court acted on wrong principles or misapprehended the evidence

Reasoning

The court restated the classic standard from Ephantus Mwangi v Duncan Mwangi Wambugu, that findings of fact are to be respected absent demonstration that the trial court failed to consider material circumstances, misapprehended the evidence, or acted on a wrong principle. Reviewing the Tribunal chairman's findings, the court found them supported by the evidence and free of misdirection on law or fact.

p. 2
02

Locus standi of the landlord to issue the termination notice

Holding

The ground failed because it was not raised before the Tribunal; the proceedings proceeded on the basis the respondent was the landlord and the appellant paid rent to her

Reasoning

The court held that capacity to serve a termination notice was not an issue the Tribunal was called upon to determine and could not be raised for the first time on appeal. The record showed the appellant paid rent to the respondent and regarded her as his landlord, so the ground had no merit.

p. 3
03

Whether the grounds for termination (necessary repairs) were proved

Holding

Yes - the Tribunal properly found on a balance of probabilities that substantial repairs were required which could not be done while the tenant remained in occupation

Reasoning

The tenant had himself complained of a leaking roof in BPRT No. 49 of 2011; the Municipal Council of Kisii had by letter dated 10th March 2012 required specified repairs including water seepage; and no repairs had been done since 1980. The court found the repairs could not be executed while the tenant's hotel business was running, and the chairman properly exercised his discretion under Section 9 of Cap 301.

p. 3

Legal principles established

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  • An appellate court will not normally interfere with a finding of fact by a trial court unless it is based on no evidence, a misapprehension of evidence, or the judge acted on a wrong principle
  • A new issue such as locus standi not raised before the Tribunal cannot be raised for the first time on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 7(1)(f)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 9(1)(a)
  • Evidence ActSections 107, 108 and 109

Cases cited (1)

  • Ephantus Mwangi & Another –vs- Duncan Mwangi Wambugu
    [1982] 1 KAR 278
On appeal from
Business Premises Rent Tribunal
30B of 2012
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301

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, "Zacharia Boera v Grace Makori [2018] KEELC 2915 (KLR)", Case Analysis (2018). Kisii B.P Rent Tribunal Case No. 30B of 2012 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2915/eng@2018-06-22

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