Adiel Nthuni Maimbu v Mugo J. Kirika [2020] KEELC 3713 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competence of an appeal from a tribunal decision on a complaint under section 12(4) of Cap. 301
The appeal is competent; a determination of a complaint under section 12(4) is appealable under section 15(1) of Cap. 301.
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.
Grant of unpleaded relief by the tribunal
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.
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.
Subletting and burden of proof
There was no evidence that the appellant sublet the suit property; the tribunal erred in shifting the burden of proof to the appellant.
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.
Restriction of the permitted business under the lease
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.
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.
Legal principles established
#- 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
#- 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.The appellant shall have the costs of this appeal and of the proceedings before the tribunal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mike Muli v Justus Mwandikwa Kilonzo & 4 others [2022] KEELC 452 (KLR)[2022] KEELC 452 (KLR)20 Apr 2022not followed
Cite this brief
#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.