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ELCDismissedKisii CM Miscellaneous Application No. 87 of 2018 (Appeal)· [2021] KEELC 636 (KLR)

Fred Ruya Abuki & another v Jesse Ng’ang’a [2021] KEELC 636 (KLR)

Environment and Land Court / High Court sitting at Kisii
25 November 2021
JOJ.M Onyango
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenyan tenants who ignore a termination notice and fail to file a Tribunal reference lose their tenancy and can lawfully be evicted.

What this practically means

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Executive summary

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This first appeal challenged a ruling of Hon. S.K Onjoro S.R.M dated 15 August 2018 in Kisii CM Miscellaneous Application No. 87 of 2018, by which the Magistrate's court adopted a letter from the Business Premises Rent Tribunal dated 30 July 2018 and issued an eviction order against the Appellants, tenants of premises known as KISII MUNICIPALITY/BLOCK K111/614, who were thereafter evicted on 17 August 2018. The Appellants argued that the letter was not a decision of the Tribunal capable of enforcement under section 14 of Cap 301, that no proper decision existed to be adopted, and that they were evicted without a hearing or a notice to show cause. The Respondent countered that the appeal was academic since the eviction had already occurred, and that the Appellants' failure to file a reference under section 6(1) of Cap 301 caused the termination notices to take effect, ending the landlord/tenant relationship and leaving eviction in the subordinate court as the landlord's only recourse. Relying on the binding Court of Appeal decision in Jitendara Mathurdas & Others v Fish and Meat Limited, the court held that failure to file a reference brings the controlled tenancy to an end, that the Tribunal thereafter has no jurisdiction, and that a letter from the Rent Inspector merely confirming that no reference was filed is sufficient. Finding the Appellants had been served and no reference filed, the court dismissed the appeal with costs to the Respondent on 25 November 2021.

Key legal issues

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01

Whether the Magistrate's court validly adopted the Rent Control Inspector's letter and issued the eviction order

Holding

The eviction order was valid; the letter merely confirmed that no reference was filed, the tenancy had ceased, and the landlord's remedy lay in the subordinate court

Reasoning

The court reasoned that upon failure to file a reference under section 6(1) of Cap 301, the tenancy notice took effect and the landlord/tenant relationship ended. The Tribunal thereafter lost jurisdiction, and the landlord's only recourse was to seek eviction from the subordinate court. The Rent Inspector's letter simply confirmed no reference had been filed; an affidavit of service showed the Appellants were served, and the eviction order was accordingly properly issued.

p. 2

Legal principles established

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  • Once a tenant served with a notice of termination fails to file a reference to the Business Premises Rent Tribunal under section 6(1) of Cap 301, the landlord/tenant relationship ceases and the landlord may apply to the subordinate court for an eviction order

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 6(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 14
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 10
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 2

Cases cited (3)

  • Charles Dickens v Walter Achango Oloo
    (2015) eKLR
  • Farid Armed Hassan v William Ouko Ogola
    Kisii HCCC No. 112 of 2007 (Unreported)
  • Jitendara Mathurdas & Others v Fish and Meat Limited
    C.A No. 267 of 1996 (U.R)
On appeal from
Senior Resident Magistrate's Court at Kisii
Kisii CM Miscellaneous Application No. 87 of 2018
Jurisdiction invoked
First appeal from the Magistrate's Court 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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Cite this brief

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Cite this brief

Caselaw, "Fred Ruya Abuki & another v Jesse Ng’ang’a [2021] KEELC 636 (KLR)", Case Analysis (2021). Kisii CM Miscellaneous Application No. 87 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/636/eng@2021-11-25

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