Imani Hospital &another; v Hasham Lalji Properties Ltd [2021] KEELC 1908 (KLR)
The bottom line
#The court dismissed a hospital's challenge to its landlord's rent increase and auctioneers' seizure, holding that its lease was not a protected tenancy.
What this practically means
#Executive summary
#Key legal issues
#Whether a protected (controlled) tenancy existed between the parties
No. The 2007 lease was for 62 months (over five years) and contained a termination clause, so it fell outside the definition of a controlled tenancy under Section 2(1) of Cap 301; consequently the plaintiffs were not protected tenants.
Section 2(1) of Cap 301 defines a controlled tenancy as one not reduced into writing, or one for a period not exceeding five years or containing a termination provision within five years. The executed lease was for 62 months and terminable on two months' notice, taking it outside the statutory definition. The plaintiffs' reliance on the BPRT regime therefore failed, and the Tribunal likely lacked jurisdiction.
Whether the rent increment by the defendant was illegal, unlawful and unenforceable
The increment was legal, lawful and enforceable. The parties were in a holding-over situation while renewal negotiations on new rent terms were ongoing, and the obligation to pay Kshs.160,000 per month ran until possession was surrendered.
Under the doctrine of holding over, terms of the old lease are implied only absent evidence of a different understanding. Here both parties were negotiating a new lease with different rent terms (defendant demanding Kshs.160,000 plus VAT and quarterly payment; plaintiffs insisting on Kshs.93,410 monthly), evidenced by the undated draft lease and the letter of 30 August 2012. Once negotiations failed and the lease expired, the plaintiffs' obligation was to pay arrears and vacate.
Whether a court order was required before levying distress for rent
No. Under the Distress for Rent Act and common law, distress requires only instructions or a warrant from the landlord and a certified bailiff, save in limited cases such as controlled tenancies.
Relying on Royal Gardens Hospital v Ambwere, the court held that leave of court is required only where the tenancy is controlled or the tenant is a serviceman; otherwise the landlord's instructions to a certified bailiff suffice, with court orders needed only where entry or seizure is resisted. Since this was not a controlled tenancy, the distress levied by M/S Eshikoni Agencies needed no court order.
Whether the 2nd plaintiff could claim under the lease
Cedar Hospital Limited (2nd plaintiff) was not a party to the 2007 lease, which was between Imani Hospital and the defendant, and had no legal basis to claim under it.
The lease dated 21 August 2007 was executed only by Imani Hospital (1st plaintiff) and Hasham Lalji Properties Limited (defendant). The 2nd plaintiff, being a stranger to that agreement, had no enforceable rights under it, undermining its claims including any assertion of a tenancy relationship with the defendant.
Legal principles established
#- A lease whose term exceeds five years, or which is terminable otherwise than for breach within five years, is not a controlled tenancy under Cap 301
- A landlord does not require a court order to levy distress for rent; instructions or a warrant from the landlord suffice
- A counterclaim unsupported by evidence remains mere allegations incapable of founding judgment
Court orders
#- 1.The plaintiffs' claim is dismissed with costs
- 2.The defendant's counterclaim fails as no evidence was adduced in support of it
- 3.Each party to bear their own costs in respect of the defendant's counterclaim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the tenancy and premises known as Eldoret Municipality Block 6/115
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.
Cite this brief
#Cite this brief
Caselaw, "Imani Hospital &another; v Hasham Lalji Properties Ltd [2021] KEELC 1908 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1908/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.