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ELCPartially AllowedTribunal Case No. 8 of 2019 (appeal therefrom, Kisii)· [2020] KEELC 2230 (KLR)

Lena Sarange v Robert Oyieko Angoi [2020] KEELC 2230 (KLR)

High Court of Kenya
20 May 2020
JOJ. M. Onyango
3,251 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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This appeal from the Business Premises Rent Tribunal (Chairman Mbichi Mboroki, 12 April 2019) concerned orders re-opening business premises on L.R. Kisii Municipality Block 11/85 and handing them to the Respondent following the Appellant's eviction. The Respondent, who held a lease over parts of the building from the owner, had issued a termination notice to the Appellant under section 4(2) of Cap 301; the Tribunal ordered eviction, later stayed, then on 12 April 2019 set aside the closure orders and directed that the premises be re-opened for the Respondent. The court framed two issues: whether the Tribunal had jurisdiction, and whether the 12 April 2019 order should be set aside. Relying on Hebtulla Properties Ltd (1979) KLR 96, the court held that section 12(1)(e) empowers the Tribunal to order recovery of possession from any person in occupation of premises comprised in a controlled tenancy, whether or not a tenant; the evidence suggested the owner had double-leased the same premises, making the Appellant effectively a sub-tenant of the Respondent, so the Tribunal acted within jurisdiction. However, the Tribunal failed to verify service of the termination notice and gave no reasoned ruling resolving the tenancy relationship. Although reinstatement was impractical because the owners had leased to the Respondent, the appeal was allowed and the matter remitted to the Tribunal for assessment of damages for loss of tenancy; the Respondent was to bear the costs of the appeal.

Key legal issues

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01

Whether the Tribunal acted within its jurisdiction in ordering eviction and re-opening of the premises

Holding

The Tribunal acted within its jurisdiction under section 12(1)(e) of Cap 301, which permits orders for recovery of possession against any person in occupation of premises comprised in a controlled tenancy.

Reasoning

The court examined section 12 of the Act and the Hebtulla Properties decision on the Tribunal's powers. Although the Appellant denied a landlord-tenant relationship with the Respondent, the evidence showed the owner had leased the same room to both parties, making the Appellant effectively a sub-tenant of the Respondent. Section 12(1)(e) empowers possession orders against any person in occupation, whether or not a tenant.

p. 4
02

Whether the order of 12.4.2019 re-opening the premises ought to be set aside

Holding

The order was flawed because the Tribunal did not verify service of the termination notice or resolve the tenancy relationship, and gave no reasons; however reinstatement was impractical, so the Appellant was left to damages.

Reasoning

The record showed no indication that the Tribunal satisfied itself that the Appellant was served with the termination notice. Witness summons to the alleged true landlords were not extended, and the Tribunal acted on a rent inspector's occupation report without resolving the tenancy relationship. The absence of a reasoned ruling meant the decision appeared unsupported by evidence. Nonetheless, as the owners had leased the premises to the Respondent, the practical remedy was damages for loss of tenancy and a claim against the owners for refund of rent and general damages.

p. 4

Legal principles established

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  • The Tribunal's power under section 12(1)(e) to order recovery of possession extends to any person in occupation of premises comprised in a controlled tenancy, whether or not that person is a tenant.
  • A Tribunal should give reasons supported by evidence on record for its decisions, even though its proceedings are informal.

Court orders

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  1. 1.Appeal allowed
  2. 2.Matter referred back to the Tribunal for assessment of the Appellant's damages for loss of tenancy
  3. 3.Respondent to bear the costs of the appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 6(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 12 (including 12(1)(e))
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 2

Cases cited (2)

  • Price v Easton
    (1833) 4B & A
  • Hebtulla Properties Ltd
    (1979) KLR 96
On appeal from
Business Premises Rent Tribunal of Kenya (Kisii)
Tribunal Case No. 8 of 2019 Robert Oyieko Angoi v Lena Sarange
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Lena Sarange v Robert Oyieko Angoi [2020] KEELC 2230 (KLR)", Case Analysis (2020). Tribunal Case No. 8 of 2019 (appeal therefrom, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2230/eng@2020-05-20

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