NV Lunar Park Mamba Village v Beatrice Muriithi t/a Redrock Pizzera [2021] KEELC 1070 (KLR)
The bottom line
#A Mombasa court ruled that Kenyan landlords who lock out tenants without proper notice lose their claims and must refund deposits.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy was a controlled tenancy
The court concurred with the Tribunal that the oral tenancy was a controlled tenancy under section 2(1) of Cap 301
The tenancy was never reduced into writing. Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy to include one which has not been reduced into writing. The Tribunal had so held in its ruling of 27th July 2018 and the court agreed with that finding, which obliged the landlord to follow the statutory termination procedure.
Whether the landlord could claim rent, service charge and electricity arrears
The claim failed; the landlord had locked out the tenant without the statutory notice, and the service charge and electricity figures were unproven
The agreement being oral, it was difficult to determine what was payable as service charge and electricity; the charges were also said to be unilaterally levied. The landlord had locked the premises and denied the tenant entry without notice to vacate, having initiated no legal process to alter or terminate the controlled tenancy, so the tenant was entitled to quiet enjoyment.
Whether the refund of Kshs.250,000/= was justified
The Tribunal's order was upheld; the appellant did not prove the money was for renovations, so it was a refundable deposit
The appellant claimed the Kshs.250,000/= was used to partition the space but adduced no evidence. The respondent maintained it was goodwill, relying on section 12(1)(l) of the Act empowering the Tribunal to award compensation on termination of a controlled tenancy in respect of goodwill, and adduced documentary proof of her own renovations.
Whether the costs assessment of Kshs.50,000/= should be disturbed
The assessment was left undisturbed as no error was demonstrated
The appellant did not identify the error made by the Chairman nor propose a correct amount nor cite any contradicting law. The court could not interfere with the Chairman's exercise of discretion absent demonstration of error or unfairness.
Legal principles established
#- Where a tenancy is a controlled tenancy, a landlord must comply with the termination and alteration prerequisites in sections 4(1), (2), (4) and (5) of Cap 301
- In the absence of evidence that a sum paid at the commencement of a tenancy was for a specific purpose (e.g. renovation), it is treated as a refundable deposit
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the Respondent
- 3.The Tribunal's orders of 16th November 2018 (refund of Kshs.250,000/= and costs of the reference assessed at Kshs.50,000/=) stand
- On appeal from
- Business Premises Rent Tribunal
- Business Premises Rent Tribunal Number 40 of 2017 (Beatrice Muriithi T/a Red Rock Pizzeria v NV Lunar Park Mamba Village)
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NV Lunar Park Mamba Village v Beatrice Muriithi t/a Redrock Pizzera [2021] KEELC 1070 (KLR)", Case Analysis (2021). Environment and Land Court Appeal arising from Business Premises Rent Tribunal Number 40 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1070/eng@2021-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.