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ELCAllowedELC Appeal No. 16 of 2019· [2019] KEELC 128 (KLR)

Pabari Harikrishna Premji t/a Pramuk Supplies v Velji Khimji Maroo [2019] KEELC 128 (KLR)

Environment and Land Court
13 December 2019
KBK. Bor
458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a rent ruling because the tribunal ignored a valuation report it had itself ordered the parties to prepare together.

What this practically means

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Executive summary

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This was an appeal from the Business Premises Tribunal (BPRT), heard together with ELC Appeal No. 17 of 2019, concerning the rent payable in respect of premises on L.R 209/4583 Kombo Munyiri Road, Nairobi. The appellant, a tenant, had opposed the landlord's notice dated 24/04/2015 seeking to increase rent from Kshs. 50,000/= to Kshs. 120,000/= (and from Kshs. 70,000/= to Kshs. 120,000/= in the companion appeal concerning Shreeji Ceramics) with effect from 1/07/2015. The BPRT Chairman, the Honourable Mbichi Mboroki, determined the rent on 24/06/2017. The appellant's principal ground of appeal was that the Chairman had ordered a joint valuation but considered only the landlord's valuation in reaching his decision, despite the joint report showing a substantially different lettable area. The respondent contended that the consent related only to measurement of comparables. The court, per K. Bor J, noted that under Section 12(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act the Tribunal must determine or vary rent having regard to all circumstances, and enjoys a wide discretion in its methodology. Reiterating that an appellate court should not disturb the exercise of discretion below unless satisfied of a misdirection, the court found the Chairman had directed a joint valuation yet failed to consider it in making his determination. The court allowed the appeal to the extent of returning both files to the BPRT solely to determine rent based on the joint valuation by Premier Valuers Limited dated 5/9/2016. No costs order was stated.

Key legal issues

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01

Whether the BPRT Chairman's failure to consider the joint valuation report amounted to a misdirection warranting appellate interference

Holding

Yes; the Chairman directed a joint valuation but failed to consider it, amounting to a misdirection.

Reasoning

The Chairman had directed the parties to procure a joint valuation by consent. The rent determination was nevertheless made without considering that report, whose lettable area differed substantially from the landlord's valuation. Since the Tribunal's mandate under Section 12(1)(b) requires regard to all circumstances, ignoring the agreed joint report was a misdirection justifying the files being returned to the Tribunal.

p. 2

Legal principles established

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  • An appellate court should not disturb the exercise of discretion of the lower court unless satisfied that the judge misdirected himself.
  • The BPRT has a wide discretion in choosing the method to determine rent payable for a controlled tenancy.

Court orders

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  1. 1.The two files are returned to the BPRT for the sole purpose of determining the rent payable based on the joint valuation undertaken by Premier Valuers Limited dated 5/9/2016

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 12(1)(b)
On appeal from
Business Premises Tribunal
BPRT Case Numbers 399 and 400 of 2015
Jurisdiction invoked
Appeal from the Business Premises Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

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, "Pabari Harikrishna Premji t/a Pramuk Supplies v Velji Khimji Maroo [2019] KEELC 128 (KLR)", Case Analysis (2019). ELC Appeal No. 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/128/eng@2019-12-13

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