Marie Stopes (K) Limited v Cecilia Kihara [2020] KEELC 3150 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the lease created a controlled tenancy under Section 2 of Cap 301
It did not. The lease was for 10 years and 3 months, exceeding the five-year threshold, was reduced into writing, and contained no provision for termination otherwise than for breach of covenant within five years.
Section 2 of Cap 301 defines a controlled tenancy as one not reduced into writing, or in writing for a period not exceeding five years, or containing provision for termination otherwise than for breach within five years. The undisputed lease here was written, for over ten years, and clause 3.1 permitted re-entry only for breach. The Appellant was therefore not a protected tenant.
The legal effect of an unregistered lease
An unregistered lease for over one year does not create an enforceable lease as against third parties, but is valid and enforceable as a contract between the parties to it.
Relying on the Court of Appeal's exposition in Mega Garment Limited and the time-honoured decision in Bachelors Bakery, an unregistered lease is valid inter partes but confers no protection against the rights of third parties. Since the dispute was purely between the two contracting parties, the unregistered lease remained enforceable between them in the Magistrate's Court.
Whether the Magistrate's Court had jurisdiction
Yes. The BPRT had no jurisdiction because the tenancy was not controlled and the tenant had vacated the premises before suit was filed; the Magistrate's Court was the suitable forum.
The BPRT's jurisdiction presupposes a landlord-tenant relationship over a controlled tenancy. Here the lease exceeded five years without a termination clause, so it was not controlled; further, the Appellant vacated on 7th January 2014, before the suit was filed. The claim to enforce the lease as a contract between the parties was properly before the Magistrate's Court.
Legal principles established
#- A tenancy whose term exceeds five years and contains no provision for termination otherwise than for breach of covenant within five years is not a controlled tenancy under Cap 301
- An unregistered lease is valid inter partes and enforceable as a contract between the parties, though it gives no protection against third parties
- Where the tenant has vacated the premises before suit, the Business Premises Rent Tribunal has no jurisdiction and the Magistrate's Court is the proper forum
Court orders
#- 1.The Appellant's appeal is dismissed with costs to the Respondent
- On appeal from
- Chief Magistrate's Court, Mombasa
- CMCC No.1589 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the High Court over appeals from subordinate courts (appeal against dismissal of a preliminary objection on jurisdiction); Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 and Registration of Documents Act Cap 285 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marie Stopes (K) Limited v Cecilia Kihara [2020] KEELC 3150 (KLR)", Case Analysis (2020). Mombasa CMCC No.1589 of 2014 (Appeal from ruling of Hon. J. Kitutu, PM delivered 21st April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3150/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.