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ELCDismissed· [2019] KEELC 4403 (KLR)

Joshua Walter Anyango Ogutu T/A Anyango Ogutu & Co. Advocates vBarclays Pension Services Limited & another [2019] KEELC 4403 (KLR)

Environment and Land Court
21 February 2019
2,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect a sub-tenant from eviction because subletting without the landlord's written consent left him with no legal right to stay.

What this practically means

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Executive summary

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The appellant filed a reference before the Business Premises Rent Tribunal in September 2016 alleging the respondents had illegally locked premises let to him, and sought injunctions. On 13th October 2017 the tribunal struck out both the reference and the application as incompetent, finding no landlord and tenant relationship conferring jurisdiction. The appellant appealed and moved the High Court/ELC by Notice of Motion dated 7th November 2017 under sections 3A and 63(e) of the Civil Procedure Act and Order 51 rule 1, seeking status quo and a temporary injunction against eviction pending the appeal. The respondents opposed, asserting no privity of contract, that the tribunal's order was negative and incapable of being stayed, and that no substantial loss, security or prima facie case was shown. It was common ground the appellant was not the respondents' tenant but a sub-tenant of W'Obiero & Co. Advocates, the head tenant, under a sub-lease entered into without the landlord's consent. Applying the principles in Patricia Njeri v National Museum of Kenya and Bilha Mideva Buluku, Okong'o J held that the appellant failed to show a prima facie case or an arguable appeal: he produced no evidence of the landlord's consent to or acquiescence in the sub-tenancy, and on the authorities an unconsented sub-tenant is a trespasser. Having failed to establish an arguable appeal, the nugatory-ness inquiry fell away. The status quo prayer fared no better, having the same effect as an injunction. The application was dismissed wholly with costs to the respondents.

Key legal issues

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01

Conditions for grant of an interlocutory injunction pending appeal

Holding

The appellant failed to meet them; the application was dismissed

Reasoning

The court applied the principles in Patricia Njeri & 3 others v National Museum of Kenya and Bilha Mideva Buluku v Everlyne Kanyere, requiring an arguable appeal, the Giella v Cassman Brown tests, and that refusal not render the appeal nugatory. The appellant admitted he was a sub-tenant of the head tenant W'Obiero & Co. Advocates, not the respondents' tenant, and produced no evidence of the landlord's consent to or acquiescence in the sub-tenancy.

p. 2
02

Whether the appellant had a legally recognised occupation of the suit property

Holding

He did not; absent the landlord's consent to sub-letting, he was in effect a trespasser

Reasoning

It was common ground that the appellant was not the respondents' tenant. The respondents averred the sub-lease by the head tenant was without their consent; the appellant did not controvert this, merely asserting acquiescence without evidence. The court relied on Farkhandas N. Abulkader and New Calabash Limited v Joseph Odero on the consequences of unconsented sub-letting.

p. 3

Legal principles established

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  • An applicant for an injunction pending appeal must establish an arguable appeal, avoid greater hardship, show the appeal would be rendered nugatory, and satisfy the Giella v Cassman Brown principles
  • Where a tenant sub-lets without the landlord's consent, no tenancy exists between the landlord and the sub-tenant and the sub-tenant is a trespasser
  • Once an applicant fails to establish an arguable appeal, the court need not consider whether the appeal would be rendered nugatory

Court orders

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  1. 1.The appellant's application dated 7th November, 2017 was dismissed with costs to the respondents

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 12(4); section 12
  • Civil Procedure Actsections 3A and 63(e)
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (13)

  • Njuguna Mwaura v Hajrabai Suleman
    [1983] eKLR
  • Farkhandas Nurmohamed Adbdulkader v Mohamed Hasham Bakarani & another
    [2014] eKLR
  • Patricia Njeri & 3 others v National Museum of Kenya
    (2004)
  • Venture Capital and Credit Ltd v Consolidated Bank of Kenya Ltd
    Civil Application No. Nairobi 349 of 2003 (UR)
  • Madhupaper International Limited v Kerr
    [1985] KLR 840
  • J. K. Industries v KCB
    1982-88 KLR 1088
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Giella v Cassman Brown & Company Ltd
    [1973] EA 358
  • Shitukha Mwamudo & Others
    (1986) KLR 445
  • Bilha Mideva Buluku v Everlyne Kanyere
    [2016] eKLR
  • Farkhandas N. Abulkader v Mohammed Hasham Bakarani & another
    [2014] eKLR
  • New Calabash Limited v Joseph Odero
    (2018) eKLR
  • Tecno Holdings Limited & 4 others v National Social Security Fund Board of Trustees
    (2018) eKLR
On appeal from
Business Premises Rent Tribunal
Reference filed 10th September 2016 (number not stated)
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules; 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, "Joshua Walter Anyango Ogutu T/A Anyango Ogutu & Co. Advocates vBarclays Pension Services Limited & another [2019] KEELC 4403 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4403/eng@2019-02-21

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