Haji Noor Mohamed v Jeilani Mohamed Mudhar [2020] KEELC 404 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competency of a cross-appeal from a Tribunal decision to the Environment and Land Court
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.
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.
Proper approach to comparable premises in rent assessment under Section 9(2)(a) of Cap 301
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.
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.
Whether the Tribunal erred in its marginal rent increase
No error; the marginal increase was consistent even with the landlord's own valuer's figures across 2015 and 2017.
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.
Legal principles established
#- 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
#- 1.The cross-appeal is struck out as incompetent
- 2.The appeal is dismissed
- 3.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.