Joshua Walter Anyango Ogutu T/A Anyango Ogutu & Co. Advocates vBarclays Pension Services Limited & another [2019] KEELC 4403 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Conditions for grant of an interlocutory injunction pending appeal
The appellant failed to meet them; the application was dismissed
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.
Whether the appellant had a legally recognised occupation of the suit property
He did not; absent the landlord's consent to sub-letting, he was in effect a trespasser
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.
Legal principles established
#- 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
#- 1.The appellant's application dated 7th November, 2017 was dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.