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ELCAllowedAppeal from Nairobi Tribunal Case No. 547 of 2014· [2020] KEELC 3713 (KLR)

Adiel Nthuni Maimbu v Mugo J. Kirika [2020] KEELC 3713 (KLR)

Environment and Land Court (High Court, superior court of first instance on appeal from the Business Premises Rent Tribunal)
30 January 2020
5,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondent landlord filed a complaint/reference at the Business Premises Rent Tribunal under section 12(4) of Cap. 301 alleging that the appellant tenant had erected illegal structures, sublet the suit property (Thika Municipality Block 10/158) to various subtenants without consent, and conducted businesses other than buying and selling cars. The tribunal found grounds two and three proved on a balance of probabilities, held that section 7(1)(c) of Cap. 301 prohibited subletting without consent, and ordered the appellant to vacate and deliver possession by 31st July, 2015, to remove temporary structures, reinstate the property, and pay costs. On appeal, the respondent raised a preliminary objection that no appeal lies from a decision on a section 12(4) complaint, relying on Re Hebatulla Properties Ltd. The court overruled the objection, following Transallied Limited v Sakai Trading Limited and holding that a complaint is lodged as a 'reference' and is appealable under section 15(1) of Cap. 301, since a superior court's jurisdiction cannot be ousted by implication. On the merits, the court found that the tribunal granted reliefs of termination of tenancy and possession which were never pleaded or sought, that a controlled tenancy cannot be terminated through a section 12(4) complaint, that the burden of proving subletting lay on the respondent and was not discharged (the tribunal's own Rent Inspector's report disclosing no subtenants), and that the lease permitted any lawful business except a church or mosque. The tribunal's judgment and orders were set aside and the respondent's reference dismissed, with costs of the appeal and of the tribunal proceedings to the appellant.

Key legal issues

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01

Competence of an appeal from a tribunal decision on a complaint under section 12(4) of Cap. 301

Holding

The appeal is competent; a determination of a complaint under section 12(4) is appealable under section 15(1) of Cap. 301.

Reasoning

Following Transallied Limited v Sakai Trading Limited, the court held that a complaint by a landlord or tenant is lodged in the tribunal as a 'reference' under Regulation 5 and Form C of the Regulations, so a party to a complaint is a party to a reference covered by section 15(1). A superior court's jurisdiction cannot be ousted by implication, and the protective purpose of Cap. 301 favours a right of appeal for an aggrieved tenant.

p. 4
02

Grant of unpleaded relief by the tribunal

Holding

The tribunal erred by terminating the tenancy and ordering recovery of possession, removal of structures and reinstatement when these were never sought in the reference or supporting affidavit.

Reasoning

The reference was a complaint under section 12(4) seeking investigation of complaints and findings on breach, not termination or possession. Termination of a controlled tenancy must be effected under section 4 of Cap. 301. The issue of termination was unpleaded and the appellant had no opportunity to respond, so the tribunal's orders could not stand.

p. 5
03

Subletting and burden of proof

Holding

There was no evidence that the appellant sublet the suit property; the tribunal erred in shifting the burden of proof to the appellant.

Reasoning

The lease permitted temporary structures and contained no restriction to a particular business or express subletting clause. The respondent alleged subletting but produced no proof; the tribunal's own Rent Inspector's report did not find subtenants and was not referred to by the tribunal. The burden lay on the respondent, not on the appellant to disprove subletting.

p. 5
04

Restriction of the permitted business under the lease

Holding

The lease allowed the appellant to carry on any lawful business except a church or a mosque; the tribunal erred in finding he was restricted to buying and selling cars.

Reasoning

The produced lease limited use to lawful business other than a church or mosque, and the appellant was permitted to erect temporary structures suitable for his business. The tribunal's contrary finding was contradicted by the documentary evidence and by the evidence of both parties.

p. 5

Legal principles established

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  • A determination of a complaint referred to the tribunal under Section 12(4) of Cap. 301 is appealable to the High Court under Section 15(1) of the Act.
  • A controlled tenancy under Cap. 301 cannot be terminated through a complaint under section 12(4); termination must follow section 4.
  • A tribunal cannot grant reliefs that were neither pleaded nor sought; issues not pleaded cannot be determined without giving the party an opportunity to respond.
  • The burden of proving subletting lies on the landlord who alleges it and cannot be shifted to the tenant, consistent with sections 107 to 109 of the Evidence Act.

Court orders

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  1. 1.The judgment and orders made by the Business Premises Rent Tribunal on 17th April, 2015 are set aside and replaced with an order dismissing the respondent's reference dated 28th August, 2014 filed at the tribunal on 29th August, 2014 in Tribunal Case No. 544 of 2014
  2. 2.The appellant shall have the costs of this appeal and of the proceedings before the tribunal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 12(4)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 4
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 6 / 6(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 7(1)(c)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 12(1)(e)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 15(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 2 (definition of reference)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Tribunal Forms and Procedure RegulationsRegulation 5 and Form C in the Schedule
  • Evidence Act, Chapter 80 Laws of Kenyasections 107 to 109

Cases cited (5)

  • Re Hebatulla Properties Ltd.
    (1976 - 1980) KLR 1195 (also cited as (1979 - 1980) KLR 96)
  • Transallied Limited v Sakai Trading Limited
    [2016] eKLR
  • Gatimu Kinguru Vs. Muya Gathangi
    (1976 - 80) I KLR 317
  • East African Railways Corporation vs. Anthony Sefu
    Dar-es-Salaam, (HCCA No. 19 of 1971) (1983) E.A 327
  • Ruth K. Wachira t/a Amigirl Beauty Parlour vs. Chairman Business Rent Tribunal
    not stated
On appeal from
Business Premises Rent Tribunal
Nairobi Tribunal Case No. 547 of 2014
Jurisdiction invoked
Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya - right of appeal to the High Court from a determination of the Tribunal

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, "Adiel Nthuni Maimbu v Mugo J. Kirika [2020] KEELC 3713 (KLR)", Case Analysis (2020). Appeal from Nairobi Tribunal Case No. 547 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3713/eng@2020-01-30

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