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ELCDismissedNot stated in the judgment· [2019] KEELC 1788 (KLR)

Hillary Kipchumba Chepkiyeng v Elizabeth Laboso [2019] KEELC 1788 (KLR)

Environment and Land Court
11 September 2019
3,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A tenant who claims illegal eviction must first take rent-notice disputes to the Business Premises Rent Tribunal, and must prove forced entry with solid evidence.

What this practically means

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Executive summary

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The plaintiff sued the registered proprietor of Eldoret Municipality Block 7/19, seeking a declaration that her 5th June 2008 entry into his hotel premises was illegal, null and void and amounted to trespass, together with general, punitive and exemplary damages, a mandatory injunction restoring him to possession, costs and interest. He alleged he was a tenant running a butchery from 1995 and a hotel from 2007, paying Kshs.18,000 monthly, and that the defendant forcefully repossessed the premises without notice, destroying his furniture. The defendant denied force, asserting the premises were dilapidated, that she gave notice and obtained Municipal Council authority to renovate, and that the plaintiff declined to sign a fresh lease at increased rent. She also raised locus standi and jurisdiction objections, contending the dispute belonged to the Business Premises Tribunal. The court framed three issues: jurisdiction, whether a controlled tenancy existed, and whether the defendant violated Cap. 301. It held the court had jurisdiction over the trespass and injunction claims, but notice and rent increment issues belonged to the Tribunal. It found the oral tenancy was a controlled tenancy making the plaintiff a protected tenant, and that the notice was too short, lacked particulars and was not in the prescribed form, contrary to section 4 of the Act. However, it found no forceful entry as the plaintiff vacated upon notice, disbelieved his renovation claim, and concluded he failed to prove his case on a balance of probabilities. The suit was dismissed with costs on 11th September 2019.

Key legal issues

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01

Jurisdiction of the Environment and Land Court vis-à-vis the Business Premises Rent Tribunal

Holding

The court has jurisdiction over the trespass and forceful entry claim, but the notice and rent increment issues belong to the Tribunal

Reasoning

The court traced its jurisdiction to Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. Examining the pleadings, it held the reliefs sought (declaration and mandatory injunction) could only be granted by the court. However, matters of tenancy notices and rent alteration for controlled tenancies are committed to the Business Premises Rent Tribunal, which the court may only entertain on appeal.

p. 6
02

Whether there was a controlled tenancy and protected tenancy

Holding

Yes - the oral tenancy over the shop and hotel premises was a controlled tenancy and the plaintiff a protected tenant

Reasoning

Applying section 2(1) of Cap. 301, the court found that although there was no written agreement, a tenancy relationship existed between the parties over Eldoret Municipality Block 7/19 predating the defendant's husband's demise. As the tenancy of the hotel and butchery had not been reduced into writing, it fell within the definition of a controlled tenancy, rendering the plaintiff a protected tenant under the Act.

p. 7
03

Whether the defendant violated the Act in issuing the notice and increasing rent

Holding

Yes, the notice was too short, unprocedural and not in the prescribed form, but the remedy lay before the Tribunal

Reasoning

The court found the notice of 11th March 2008 for repairs commencing 1st April 2008 was too short and lacked particulars, contrary to section 4 of the Act requiring notice in the prescribed form. The rent was altered without notice or assessment. Nonetheless, since these issues fall within the Tribunal's remit, the plaintiff ought to have referred them there rather than filing suit, and his suit failed.

p. 7
04

Whether the defendant forcefully entered and destroyed the plaintiff's property

Holding

No forceful entry was proved; the plaintiff vacated upon notice and failed to prove his entitlement to damages

Reasoning

The court found the defendant gave notice to all tenants to vacate for repairs, obtained Municipal Council authority, and the plaintiff vacated without complaint. The plaintiff's claim to have renovated the premises at a cost was disbelieved because he lacked written permission from the landlord. On the evidence, including the plaintiff's own cross-examination concessions, the plaintiff failed to prove his case on a balance of probabilities.

p. 7

Legal principles established

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  • A tenancy not reduced into writing in respect of a shop, hotel or catering establishment is a controlled tenancy under Cap. 301, making the occupier a protected tenant
  • Termination of or alteration of terms in a controlled tenancy requires notice in the prescribed form under section 4 of Cap. 301; a short notice without particulars is unprocedural
  • The Environment and Land Court has jurisdiction over claims of forceful entry and trespass and power to grant injunctions, but issues of termination notices and rent increment for controlled tenancies belong to the Business Premises Rent Tribunal

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301Section 2(1) (definition of controlled tenancy); Section 2 (definition of tenancy notice); Section 4 (termination of and alteration of terms in controlled tenancy)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Hillary Kipchumba Chepkiyeng v Elizabeth Laboso [2019] KEELC 1788 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1788/eng@2019-09-11

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