Asumpter Wangari Njenga v Bonaventure Mwangi Njoga [2019] KEELC 1769 (KLR)
The bottom line
#A Kenyan court confirmed that a landlord who retires, saves Kshs 10 million, forms a company and gets a licence can lawfully end a tenant's lease for personal occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Sedco letter of 25/8/2015 created a six-year tenancy ousting the Tribunal's jurisdiction
The jurisdictional issue could not be raised for the first time on appeal since the appellant never raised it before the Tribunal and fully ventilated her case there
The appellant lodged the reference in the Tribunal in possession of the 25/8/2015 letter but never objected to the Tribunal's jurisdiction. Jurisdiction was not among the issues the Tribunal was invited to determine. Having fully ventilated her case on the premise that the Tribunal had jurisdiction, she could not raise the issue on appeal after an unfavourable finding. Raising a fresh issue on appeal is impermissible per the Supreme Court in Mohamed Abdi Mohamed.
Whether the Tribunal erred in failing to find the respondent's intended business illegal
The Tribunal did not err; suitability of the business was a matter for licensing authorities and the expert report lacked the project proponent's input
The Tribunal found the suitability question hypothetical, as it could only be considered by licensing authorities upon application. Antony Muiruri's report was authored without the respondent's consent or involvement, contravening the NEMA Code of Practice, and lacked the proponent's input on the business details and mitigating measures. The court agreed with the Tribunal's treatment of that evidence.
Whether the respondent satisfied Section 7(1)(g) of the Act - intention to occupy for own business
The respondent met the statutory requirements: he retired, set aside Kshs 10,000,000, incorporated a one-man company as his business vehicle and procured a county licence
The respondent testified he retired from formal employment and set aside Kshs 10,000,000 for the intended business, producing bank statements. He incorporated Bonwanjo Knitters Embroidery Limited as a one-man company to use as his business vehicle and obtained a County Government licence. There was no controverting evidence that the company belonged to a third party, so occupation through the company did not defeat the requirement.
Legal principles established
#- A litigant in an appellate court is not at liberty to introduce fresh issues which were not canvassed or pronounced on in the lower court
- An appellate court will not interfere with the trial court's findings of fact unless they are based on no evidence, on a misapprehension of evidence, or the trial court acted on wrong principles
Court orders
#- 1.The appeal is dismissed
- 2.The respondent shall have costs of the appeal
- On appeal from
- Business Premises Rent Tribunal (Chairman Hon Mbichi Mboroki)
- Nairobi BPRT Case Number 163 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asumpter Wangari Njenga v Bonaventure Mwangi Njoga [2019] KEELC 1769 (KLR)", Case Analysis (2019). Nairobi BPRT Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1769/eng@2019-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.