Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment; memorandum of appeal dated 8th February, 2016· [2019] KEELC 4412 (KLR)

Eldomart Holdings Limited v Ticket Company Limited [2019] KEELC 4412 (KLR)

Environment and Land Court
14 February 2019
SOS. Okong'o
2,005 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

#

A Kenyan landlord lost an attempt to evict a tenant because the business it claimed to need the premises for was actually run by another company.

What this practically means

#

Executive summary

#
The appellant landlord served a termination notice on the respondent tenant under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, invoking section 7(1)(g), on the ground that it intended to occupy the suit premises on the 1st Floor of Woodvale Place for its own business - a proposed Yoga Studio complementing its 'Mind Body and Spirit' business. The tenant filed a reference at the Business Premises Rent Tribunal (Case No. 289 of 2014), which after a full hearing allowed the reference and dismissed the notice, finding a genuine intention but noting the absence of statutory approvals for alterations and of demonstrated financial capacity. The landlord appealed on five grounds. Okong'o J, deciding the appeal on written submissions, held that the Act is remedial and tenant-protective and that the burden lay on the landlord to prove a firm and settled intention to occupy for its own business. The landlord's own witness admitted the 'Mind Body and Spirit' business was unregistered and run by AAA Pharmaceuticals Limited, a third party, with no evidence of the relationship between them; a landlord cannot terminate on the basis of a business to be run by a third party. The absence of approved plans and proof of financial capacity, while not determinative in isolation, reinforced the doubt over the landlord's intention. The court concluded the tribunal reached the correct decision albeit for wrong reasons, found no merit in the appeal, and dismissed it with costs to the respondent on 14th February 2019.

Key legal issues

#
01

Whether the appellant proved the ground for termination under section 7(1)(g) of the Act

Holding

The appeal was dismissed; the tribunal's dismissal of the termination notice was affirmed, though the court held the tribunal reached the right decision for partly wrong reasons.

Reasoning

The burden lay on the landlord to show a firm and settled intention to occupy the premises for its own business for at least one year. The landlord's witness admitted the 'Mind Body and Spirit' business was unregistered and operated by AAA Pharmaceuticals Limited, a third party, with no evidence of the relationship between the companies. Absence of approved plans and demonstrated financial capacity further cast doubt on the intention. The statutory ground therefore failed.

p. 2
02

Whether the tribunal erred in considering financial ability and absence of statutory approvals

Holding

These factors, considered together with the other evidence, properly weighed against the appellant's asserted intention, though in isolation they could not determine it.

Reasoning

The court agreed with the appellant that lack of approved plans and demonstrated financial resources could not, in isolation, determine the landlord's intention. However, together with the evidence that the intended business was unregistered and would be run by another company, those matters added weight to the respondent's contention that no firm and settled intention existed.

p. 2

Legal principles established

#
  • The onus is on the landlord to establish a firm and settled intention to occupy the premises held by a tenant
  • A landlord cannot terminate a tenancy under section 7(1)(g) on the ground that it requires the premises for a business to be run by a third party

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 7(1)(g)

Cases cited (1)

  • Auto Engineering v Gonella
    (1978) KLR 248
On appeal from
Business Premises Rent Tribunal, Nairobi
Tribunal Case No. 289 of 2014
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Eldomart Holdings Limited v Ticket Company Limited [2019] KEELC 4412 (KLR)", Case Analysis (2019). Not stated in the judgment; memorandum of appeal dated 8th February, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4412/eng@2019-02-14

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