Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. E107 of 2020· [2020] KEELC 1287 (KLR)

Bush Air Safaris Limited v Enrica Forno & another [2020] KEELC 1287 (KLR)

Environment and Land Court
24 September 2020
BEB M Eboso
2,984 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court protected a Wilson Airport tenant from eviction because the landlord skipped the legal steps required to terminate a controlled tenancy.

What this practically means

#

Executive summary

#
The plaintiff, Bush Air Safaris Limited, sued as a sub-tenant of the 1st defendant occupying Hangar 16 on LR No. 209/13080, Wilson Airport, Nairobi, with the Kenya Airports Authority as head landlord. It alleged a tenancy at an annual rent of Kshs 1,000,000 and challenged a seven-day notice to vacate issued on the pretext of rent arrears of Kshs 12,500,000, which it said represented aircraft purchase balances. It sought a permanent injunction and, by notice of motion dated 3/9/2020, interim injunctive relief, later supplemented by an application for police assistance in enforcing interim orders. The 1st defendant opposed, asserting an oral agreement for annual rent of Kshs 2.2 million, substantial arrears, unpaid aircraft purchase price, a bounced cheque, and non-disclosure that the plaintiff had vacated the premises; she also contested the court's jurisdiction, contending the dispute belonged to the Business Premises Rent Tribunal. The court framed two issues: its jurisdiction given the Tribunal's suspension (appointments stayed by the Employment and Labour Relations Court), and whether the Giella v Cassman Brown criteria were met. Holding that in the absence of a functional Tribunal it could invoke its original jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, and finding a prima facie case and irreparable harm, the court granted a time-limited preservatory injunction conditioned on the plaintiff paying the disputed annual rent, lapsing sixty days after the Tribunal's first sitting, with police assistance for enforcement and a mention to close the suit once the Tribunal resumed.

Key legal issues

#
01

Jurisdiction of the ELC where the Business Premises Rent Tribunal is not quorate

Holding

The court has jurisdiction to entertain the application in the absence of a functional Tribunal

Reasoning

The parties agreed the relationship was landlord and tenant over business premises and that the Tribunal is the primary forum. However, appointments to the Tribunal were stayed by the Employment and Labour Relations Court, leaving it non-quorate. Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act grant the court original jurisdiction over disputes concerning use and occupation of land, permitting it to admit urgent applications that would ordinarily go to the Tribunal.

p. 3
02

Whether the plaintiff met the Giella v Cassman Brown criteria for interlocutory injunction

Holding

The plaintiff established a prima facie case and irreparable harm, warranting a time-limited preservatory injunction

Reasoning

The notice to vacate purported to terminate a controlled tenancy through a seven-day notice without following the statutory procedure under the Landlord and Tenant Act. The plaintiff operated an airline with 12 aircrafts serviced by the hangar, so unprocedural termination would cause irreparable harm. No evidence supported the claim of a subsequent tenant. Both limbs of Giella were satisfied, so the balance of convenience did not arise.

p. 4

Legal principles established

#
  • In the absence of a functional Business Premises Rent Tribunal, the Environment and Land Court can invoke its original jurisdiction to entertain urgent applications that would ordinarily be adjudicated at the Tribunal
  • A landlord wishing to terminate a controlled business premises tenancy must follow the statutory procedure under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

Court orders

#
  1. 1.Pending resumption of sittings by the Business Premises Rent Tribunal, the defendants are restrained against terminating the plaintiff's tenancy in respect of Hangar 16, located on Land Reference Number 209/13080, Wilson Airport, Nairobi or interfering with the plaintiff's occupation of the said business premises
  2. 2.The plaintiff shall with immediate effect pay the defendants the disputed annual rent of Kshs 1,000,000 in relation to Hangar 16, Wilson Airport, and shall continue to make similar annual payments throughout the period of subsistence of this order
  3. 3.The interim order shall lapse sixty (60) days from the date the Business Premises Rent Tribunal shall hold its first sitting at Nairobi
  4. 4.The Officer Commanding Wilson Airport Police Station shall assist in the enforcement of this order
  5. 5.The matter shall be mentioned on 16/2/2021 with a view to confirming resumption of sittings by the Tribunal and marking this case as closed

Authorities

#

Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSection 13
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bush Air Safaris Limited v Enrica Forno & another [2020] KEELC 1287 (KLR)", Case Analysis (2020). ELC Case No. E107 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1287/eng@2020-09-24

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