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ELCDismissedELC Appeal (from BPRT No. 195 of 2018)· [2020] KEELC 404 (KLR)

Haji Noor Mohamed v Jeilani Mohamed Mudhar [2020] KEELC 404 (KLR)

Environment and Land Court of Kenya
18 November 2020
3,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant landlord appealed against a decision of the Business Premises Rent Tribunal (Chairman Mbichi Mboroki, 5 July 2019) which, on a reference by the tenant, increased rent for premises on Makawi Road, Mombasa only marginally from KShs. 45,834/= to KShs. 46,728/= with effect from 1 February 2019, preferring the tenant's valuation report over the landlord's. The tenant filed a cross-appeal seeking reinstatement of the old rent. The landlord's counsel sought striking out of the cross-appeal as filed out of time under Section 79G of the Civil Procedure Act. Munyao Sila J held that Section 15 of Cap 301, not Section 79G, governs appeals from the Tribunal, and that no statute provides for cross-appeals to the Environment and Land Court. Unlike the Court of Appeal Rules (Rule 93), an aggrieved party must file an appeal within 30 days of the decision; the court expressly disagreed with the decision in Kenya Bus-Rapid v Gichure (Sergon J) which allowed cross-appeals within 30 days of service. The cross-appeal was struck out as incompetent. On the appeal, the court held that comparable premises need not be on the same street, but a landlord must explain why a shop on the same plot should pay nearly twice the rent paid by another shop there. No such evidence was offered, and the landlord's own valuer proposed the same rent in 2015 and 2017, supporting a marginal increase. The appeal was dismissed with no orders as to costs, both sides having lost.

Key legal issues

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01

Competency of a cross-appeal from a Tribunal decision to the Environment and Land Court

Holding

The cross-appeal is incompetent; a party aggrieved by a Tribunal decision must file an appeal within 30 days of the decision, and no law permits a cross-appeal filed within 30 days of service of a memorandum of appeal.

Reasoning

Neither Cap 301, the Civil Procedure Act nor the Environment and Land Court Act contains a provision on cross-appeals. Rule 93 of the Court of Appeal Rules cannot be imported into these statutes. Section 15 of Cap 301 requires any aggrieved party to appeal within 30 days. The decision in Kenya Bus-Rapid (Sergon J) allowing cross-appeals within 30 days of service was expressly disagreed with as it is not binding.

p. 3
02

Proper approach to comparable premises in rent assessment under Section 9(2)(a) of Cap 301

Holding

Comparable premises need not be on the same street, but rent payable by another tenant on the same plot is a critical benchmark which the landlord must rebut with evidence.

Reasoning

The Tribunal must assess rent having regard to what the premises might reasonably fetch in the open market. Comparables may lie in another street where justified, but a landlord seeking to charge nearly double the rate paid by another shop on the same plot must present oral or affidavit evidence explaining the departure. No such evidence was offered here.

p. 4
03

Whether the Tribunal erred in its marginal rent increase

Holding

No error; the marginal increase was consistent even with the landlord's own valuer's figures across 2015 and 2017.

Reasoning

The Chairman properly considered the valuation reports and surrounding factors. The landlord's own expert proposed the same rent in 2015 and 2017, indicating no significant market increase, so the marginal increase of KShs. 834/= fell within the reasoning of the landlord's own expert.

p. 4

Legal principles established

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  • There is no provision for a cross-appeal from a Tribunal decision to the Environment and Land Court; an aggrieved party must file a memorandum of appeal within 30 days of the decision, not within 30 days of service of the memorandum of appeal
  • Comparable premises for rent assessment are not limited to premises along the same street, but a landlord must explain why a shop within the same building or plot should pay radically more than another

Court orders

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  1. 1.The cross-appeal is struck out as incompetent
  2. 2.The appeal is dismissed
  3. 3.No orders as to costs

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301Section 9(2)(a)
  • Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301Section 9(3)(a)
  • Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301Section 15
  • Civil Procedure ActSection 79G
  • Environment and Land Court ActSection 16A
  • Court of Appeal RulesRule 93

Cases cited (2)

  • Kenya Bus-Rapid t/a Kenya Bus Services Management Co Ltd vs Patrick Irungu Gichure
    (2018) eKLR
  • Njoroge Ndurugu & Others t/a Ngamini Bar & Restaurant vs Alykah Investments Limited
    (2015) eKLR
On appeal from
Business Premises Rent Tribunal
BPRT No. 195 of 2018, Haji Noor Mohamed vs Jeilani Mohamed Mudhar
Jurisdiction invoked
Section 15 of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301 - appeal to the Environment and Land Court

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, "Haji Noor Mohamed v Jeilani Mohamed Mudhar [2020] KEELC 404 (KLR)", Case Analysis (2020). ELC Appeal (from BPRT No. 195 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/404/eng@2020-11-18

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