Neff Autospares Limited v Ramnbhai G. Patel & 2 others [2019] KEELC 135 (KLR)
The bottom line
#A Mombasa court set aside a Tribunal rent ruling, holding that rent must be assessed on how premises are actually used — one shop, not four.
What this practically means
#Executive summary
#Key legal issues
#Competence of the landlord's notice to increase rent issued by persons who were not registered trustees
The notice was competent; the respondents were, as between themselves and the tenant, the persons entitled to rents and profits and thus landlords under Cap 301.
Section 2 of Cap 301 defines a landlord as the person for the time being entitled to the rents and profits of the premises. Ramanbhai Patel testified he had been a trustee for over ten years and the respondents were entitled to the rents. Trustees of a perpetual trust keep changing, ownership of the property was not in issue in the reference, and the issue of trustee status does not concern or prejudice the tenant who instituted the reference. The locus objection therefore had no basis.
Whether the premises comprise one shop or four shops
On the evidence the Tribunal was not justified in finding four shops; the premises comprised one shop occupied and used as a single business.
The Tribunal itself found the tenant carried on a single business and that the premises 'can be used independently depending on the choice of the tenant', implying uncertainty rather than a firm finding of four shops. The invoices referring to four shops were all issued after the reference was filed and could well have been prepared to suit the respondents' case; no invoices from the preceding 25 years of tenancy were produced. The 1985 letter referred to two shops while the 2014 letter referred to four, and the 1998 Tribunal order made no reference to the suit plot.
Whether the Tribunal's decision was against the weight of the evidence
The Tribunal erred in assessing rent on the basis of four shops and arrived at a wrong decision; its judgment was set aside.
The evidence of the parties was conflicting. The Tribunal's own findings disclosed doubt about whether the four rooms were used as one shop or four shops, and the documentary basis for the four-shop finding (post-filing invoices, contradictory letters and an unrelated order) was unreliable. Rent assessed on the four-shop basis therefore rested on an erroneous finding and had to be set aside with a fresh valuation on a one-shop basis.
Legal principles established
#- The test for whether premises constitute one or more shops is the actual user and occupation, not potential user.
- On a first appeal the court must evaluate, re-assess and re-analyse the evidence and reach its own conclusions.
- A landlord under Cap 301 is the person entitled as between himself and the tenant to the rents and profits of the premises; issuance of a notice by persons who are not registered trustees is not fatal where they are entitled to the rent.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the Tribunal dated 16th November 2018 set aside
- 3.Deputy Registrar of the court to deputize a valuer to assess the open market rent on the basis that the suit premises comprises one shop
- 4.Parties to submit on the valuer's report
- 5.Each party to bear their own costs
- On appeal from
- Business Premises Rent Tribunal, Mombasa
- BPRT Case No. 42 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over a Business Premises Rent Tribunal decision under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Neff Autospares Limited v Ramnbhai G. Patel & 2 others [2019] KEELC 135 (KLR)", Case Analysis (2019). BPRT Appeal (Mombasa) – arising from BPRT Case No. 42 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/135/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.