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ELCPartially AllowedMombasa CMCC No. 1745 of 2014 (Appeal from ruling dated 3 March 2017)· [2021] KEELC 3332 (KLR)

Nur Sheikh Mohamed v Mohamed Imani [2021] KEELC 3332 (KLR)

Environment and Land Court of Kenya
5 May 2021
MSMunyao Sila
2,492 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that landlords can sue in ordinary courts when tenants ignore a termination notice and never challenge it at the Rent Tribunal.

What this practically means

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Executive summary

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The appellant, as landlord, sued the respondent in Mombasa CMCC No. 1745 of 2014 seeking vacant possession, rent arrears of Kshs. 315,500 and mesne profits after serving a Section 4 termination notice under Cap 301, which the respondent never contested by a Section 6 reference to the Business Premises Rent Tribunal. The appellant filed an application for summary judgment and a later application to strike out the defence filed and served out of time. The trial Magistrate, Hon. L.T. Lewa, dismissed both applications and the entire suit, holding that the Tribunal, not the Magistrate's Court, had jurisdiction over the controlled tenancy. On appeal, Munyao Sila J considered the sole issue of jurisdiction. Relying on the binding Court of Appeal decision in Jitendra Mathurdas Kanabar & 2 Others v Fish & Meat Ltd, the court held that where a Section 4 termination notice is served and the tenant fails to file a Section 6 reference, the notice takes effect under Section 10, the tenancy ends, no controlled tenancy remains, and the Tribunal loses jurisdiction, leaving the landlord free to sue in the ordinary courts. The trial Magistrate had erred in ignoring binding precedent. The appeal was allowed: the ruling of 3 March 2017 was set aside, the suit and both applications were reinstated, and the parties were remitted to the Magistrate's Court for determination of the applications. The appellant received the costs of the appeal.

Key legal issues

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01

Whether the Magistrate's Court had jurisdiction where a controlled tenancy had terminated by operation of Section 10 of Cap 301 for want of a Section 6 reference

Holding

The trial Magistrate erred; once the Section 4 notice took effect under Section 10 with no reference filed, no controlled tenancy existed and the Tribunal had no jurisdiction, so the Magistrate's Court had jurisdiction over the landlord's suit

Reasoning

The court adopted the Court of Appeal's interpretation in the Jitendra case, which was directly on point and binding. The tenant did not file a reference after the Section 4 notice, so the tenancy terminated on the notice's effective date. With no subsisting controlled tenancy, Section 14 could not confer jurisdiction on the Tribunal. The Magistrate failed to follow binding precedent despite it being cited to her.

p. 2
02

Whether the trial Magistrate was bound by the Court of Appeal decision cited to her

Holding

Yes; the Magistrate erred in not following the doctrine of stare decisis and gave no reason for departing from the Jitendra decision

Reasoning

The Jitendra case was referred to the trial court by counsel, its facts were materially similar, and no contrary authority was cited either at trial or on appeal. A magistrate court is bound by Court of Appeal decisions, and silence about a cited binding precedent without reasons constituted error justifying setting aside the ruling.

p. 3

Legal principles established

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  • Once a landlord issues a Section 4 termination notice of a controlled tenancy and the tenant fails to file a Section 6 reference before the Tribunal, the notice takes effect under Section 10, the tenancy ends, and the Tribunal loses jurisdiction; the landlord may sue in the ordinary courts
  • Lower courts are bound by Court of Appeal decisions under the doctrine of stare decisis

Court orders

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  1. 1.The ruling of the trial Magistrate dated 3 March 2017 is set aside
  2. 2.The suit at the Magistrate's Court is reinstated
  3. 3.The two applications dated 9 February 2015 and 16 June 2015 are reinstated
  4. 4.Parties to go back to the Magistrate's Court for the determination of the two applications
  5. 5.The appellant shall have the costs of this appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels & Catering Establishments) ActSections 2, 4, 4(2), 6, 6(1), 10, 14
  • Civil Procedure Rules, 2010Order 36 Rule 1, Order 7 Rule 1, Order 2 Rule 15(1)(b)(c)(d), Order 10 Rule 3

Cases cited (2)

  • Jitendra Mathurdas Kanabar & 2 Others vs. Fish & Meat Ltd
    Civil Appeal No. 267 of 1996 (1997) eKLR
  • Syedna Mohamed Burhannudin Saheb vs Mohamedally Hassanally
    Civil Appeal No. 28 of 1980
On appeal from
Magistrate's Court, Mombasa
Mombasa CMCC No. 1745 of 2014
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the Senior Resident Magistrate

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, "Nur Sheikh Mohamed v Mohamed Imani [2021] KEELC 3332 (KLR)", Case Analysis (2021). Mombasa CMCC No. 1745 of 2014 (Appeal from ruling dated 3 March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3332/eng@2021-05-05

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