Cancer Investments Limited v Sayani Investments Limited [2019] KEELC 4807 (KLR)
The bottom line
#The High Court upheld a tribunal's decision to end a Nairobi shop tenancy after the tenant stopped paying rent for nearly a year.
What this practically means
#Executive summary
#Key legal issues
#Termination of a protected tenancy under Section 7(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
The tribunal was entitled to find both that the tenant had defaulted in paying rent for two months and that it had persistently delayed in paying rent, validating the landlord's termination notice
The landlord's notice was issued under section 7(1)(b) of the Act, permitting termination where a tenant defaults in paying rent for two months or persistently delays paying rent. The appellant's own statement of account showed the last payment was in December 2010, with no payments between January and December 2011. The alleged overpayment, premised on an alleged surrender of the first floor shops, was not proved. Dishonoured cheques further demonstrated persistent delay.
Duty of a first appellate court
The court re-evaluated the tribunal evidence but declined to disturb the tribunal's findings, which were supported by the evidence
Guided by Verani t/a Kisumu Beach Resort and Selle v Associated Motor Boat Co. Ltd on the duty of the first appellate court, and by Peter v Sunday Post Ltd and Makube v Nyamuro on interference with findings of fact, the court reviewed the account statements and found the tribunal's conclusions on arrears and persistent delay unassailable. The alleged surrender of the first floor shops was unsupported by any evidence beyond contradicted oral testimony.
Stay of tribunal proceedings pending related High Court litigation
The claim failed: the appellant did not appeal the ruling on jurisdiction and showed no nexus between the High Court cases and the tribunal matter
The tribunal had overruled the appellant's preliminary objection on jurisdiction in an interlocutory ruling which was not appealed, so it could not be reopened on the final appeal. Further, a claim for damages against the landlord arising from other proceedings did not excuse the tenant from paying rent consistently.
Alleged bias by the tribunal Chairperson
No evidence of bias; accepting one party's evidence over the other's after evaluation is not bias
The appellant alleged the Chairperson was biased by preferring the respondent's evidence. The court held that a tribunal is entitled to prefer one party's evidence after evaluating the evidence from both sides, and that doing so does not constitute bias. No material on the record supported the allegation.
Legal principles established
#- A first appellate court must consider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses
- An appellate court will not ordinarily interfere with findings of fact by the trial court unless they were not based on evidence at all, on misapprehension of the evidence, or where the court acted on wrong principles
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Business Premises Rent Tribunal
- Nairobi Tribunal Case No. 309 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over an 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
#Cite this brief
#Cite this brief
Caselaw, "Cancer Investments Limited v Sayani Investments Limited [2019] KEELC 4807 (KLR)", Case Analysis (2019). Not stated in the extract provided (appeal from Nairobi BPRT Case No. 309 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4807/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.