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ELCDismissedNairobi BPRT Case Number 422 of 2015 (appeal therefrom)· [2019] KEELC 1703 (KLR)

John Ngugi Ngigi v Danson Njoroge Murata [2019] KEELC 1703 (KLR)

Not expressly stated in the judgment (appeal from the Business Premises Rent Tribunal, decided at Nairobi)
24 September 2019
BEB M Eboso
2,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landlord won the right to evict a tenant by proving genuine renovation plans with a county notice, authorisation letter and bank statement showing Kshs 385,344 set aside.

What this practically means

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Executive summary

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This was a first appeal against the judgment of the Business Premises Rent Tribunal (Chairman Hon Mbichi Mboroki) delivered on 17/11/2017 in Nairobi BPRT Case Number 422 of 2015. The Tribunal had dismissed a reference filed by the appellant tenant challenging a statutory notice of termination issued under Section 4 of Cap 301 by the respondent landlord, who sought vacant possession on the ground that he intended to carry out extensive renovations, reconstruction and to use the premises for other ventures. The appellant raised six grounds, arguing the landlord had not made out a case for vacant possession, that the notice was actuated by malice (its real purpose being to secure a higher rent of Kshs 13,000), that the authorizing documents extended only to painting and floor repairs, and that the landlord's sole witness, Sarah Wambui Njoroge, was not competent to testify absent a power of attorney or letter of authority. B M Eboso J framed a single issue: whether the Tribunal erred in finding the respondent had satisfied Section 7(1)(f) of the Act. Applying the established principles on re-evaluation of evidence on a first appeal, the court found the landlord had proved his case: a County Government notice requiring repairs, a letter authorizing repair works, and a bank statement showing Kshs 385,344 set aside for the works, with the other tenants having vacated. The competency challenge failed because no statutory provision was cited and no objection was raised at trial. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the landlord satisfied Section 7(1)(f) of Cap 301 — intention to demolish, reconstruct or carry out substantial work of construction requiring possession

Holding

The Tribunal did not err; the respondent proved the intention and ability to carry out substantial repairs/reconstruction which could not be done while the tenant remained in occupation

Reasoning

The landlord's witness produced a County Government notice requiring repair works, a letter authorizing the repairs, and a bank statement showing Kshs 385,344 set aside for the works. The other five tenants had vacated. The tenant, by contrast, produced no approvals or documentary evidence of the repairs he claimed to have done. The court, re-evaluating the evidence as a first appellate court, found the Tribunal's conclusion sound.

p. 3
02

Competency of the landlord's wife to testify without a power of attorney or letter of authority

Holding

No proper basis to challenge the witness's competency on appeal; no statutory provision was cited and no objection was raised at trial

Reasoning

Counsel for the appellant argued the witness lacked authority to testify, but cited no specific provision of the Evidence Act or other law. Throughout the testimony, counsel raised no objection and allowed production of documents without objection. The court held the issue could not be raised for the first time on appeal.

p. 3

Legal principles established

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  • On a first appeal, the appellate court re-evaluates the evidence and makes its own findings, but will not interfere with findings of fact unless they are based on no evidence, a misapprehension of evidence, or wrong principles.
  • A party cannot challenge the competency of a witness or the admissibility of evidence on appeal where no objection was raised at trial.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The respondent shall have costs of the appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 7 / Section 7(1)(f)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Preamble
  • Evidence Actnot specified

Cases cited (1)

  • Ephantus Mwangi & Another vs. Duncan Mwangi Wambugu
    (1982) IKAR 278
On appeal from
Business Premises Rent Tribunal
Nairobi BPRT Case Number 422 of 2015
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, "John Ngugi Ngigi v Danson Njoroge Murata [2019] KEELC 1703 (KLR)", Case Analysis (2019). Nairobi BPRT Case Number 422 of 2015 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1703/eng@2019-09-24

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