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ELCAllowedELC Case No. 33 of 2009· [2019] KEELC 240 (KLR)

Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Sushila Anantrai Raval) v Afapack Enterprises Limited [2019] KEELC 240 (KLR)

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

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A Kenyan business lost its premises because it ignored a valid termination notice and never took the dispute to the tribunal in time.

What this practically means

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Executive summary

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The Plaintiff, executrix and administrator of the estate of the late Sushila Anantrai Raval, the registered proprietor of land reference number 1870X/38, sued Afapack Enterprises Limited, a tenant of the suit property during the deceased's lifetime. After the lease expired, the Plaintiff proposed a new lease raising rent from Kshs. 60,000 to 75,000 and requiring repairs; the Defendant declined to sign, rendering the tenancy a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The Plaintiff issued a notice of termination effective 15/04/2009, which the Defendant did not contest, and filed suit seeking vacant possession within 7 days, eviction in default with police assistance, a permanent injunction, and costs. Interlocutory judgment was entered against the Defendant for failure to file a defence, and the Court of Appeal declined to set it aside. At trial the Plaintiff testified and produced documents. The court held that under Section 4 of the Act a landlord terminating a controlled tenancy must give notice in the prescribed form, and under Section 6 a tenant wishing to dispute the notice had to notify the landlord or refer the matter to the tribunal. There being no evidence the Defendant contested the notice, it took effect on the date specified. The court held that a tenant who fails to contest the notice within the required time has no right to remain in occupation, granted the prayers in the plaint, and ordered the Defendant to vacate within 30 days, failing which eviction would follow with the assistance of the Officer Commanding Parklands Police Station, with costs of the suit to the Plaintiff. Judgment delivered by K. Bor, J, on 13 December 2019 at Nairobi.

Key legal issues

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01

Validity and effectiveness of the notice terminating the controlled tenancy

Holding

The notice of termination effective 15/04/2009 was valid and took effect as specified because the Defendant neither notified the landlord of unwillingness to comply nor referred the matter to the tribunal under Section 6 of the Act.

Reasoning

Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act requires a landlord terminating a controlled tenancy to issue notice in the prescribed form. The Plaintiff issued such a notice effective 15/04/2009. Under Section 6, a tenant wishing to dispute the notice had to notify the landlord or refer the matter to the tribunal. There was no evidence the Defendant did so, so the notice took effect on the date stated.

p. 2
02

Right of the Defendant to continued occupation

Holding

Having failed to contest the notice within the legally prescribed time, the Defendant has no right to continue occupying the suit premises and possession must be surrendered.

Reasoning

The Defendant did not file a defence on time, leading to interlocutory judgment which the Court of Appeal declined to set aside. On the evidence, the tenancy became a controlled tenancy after the parties failed to agree on a new lease. The Defendant did not challenge the termination notice within the statutory period, thereby losing any right to remain in occupation. The court therefore granted the prayers in the plaint dated 28/09/2009.

p. 2

Legal principles established

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  • A landlord terminating a controlled tenancy must give notice in the prescribed form under Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; if the tenant fails to contest the notice or refer the dispute to the tribunal, the notice takes effect on the date specified in it.
  • A tenant who fails to contest a termination notice within the time required by law has no right to continue occupying the premises.

Court orders

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  1. 1.The Defendant shall vacate the suit premises within 30 days of the date of the judgment
  2. 2.In default, the Defendant shall be evicted from the suit premises with the assistance of the Officer Commanding Parklands Police Station
  3. 3.The Defendant shall pay costs of the suit

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 6
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit (originally filed as High Court Civil Suit No. 530 of 2009); suit governed by 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, "Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Sushila Anantrai Raval) v Afapack Enterprises Limited [2019] KEELC 240 (KLR)", Case Analysis (2019). ELC Case No. 33 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/240/eng@2019-12-13

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