Kenneth Njoroge Ndumbi v Kavore Kariuki [2021] KEELC 3395 (KLR)
The bottom line
#A Kenyan landlord lost his appeal because courts will not re-litigate tenancy questions a High Court has already decided.
What this practically means
#Executive summary
#Key legal issues
#Tribunal jurisdiction over the tenancy
The Tribunal had jurisdiction because the written lease, though nominally for five years, contained clause 12 permitting termination on two months' notice, making it a controlled tenancy under Section 2 of Cap 301.
The lease dated 14/8/2015 provided for a five-year term commencing 1 September 2015, but clause 12 allowed the tenant to terminate on two months' written notice otherwise than for breach. Both prongs of the statutory definition of a controlled tenancy were met, a point already determined by the High Court in JR No 7 of 2016. The appellant's application four days later invited the Tribunal to re-determine the same issue with no change in circumstances, an abuse of process.
Subsistence of the landlord-tenant relationship
A landlord-tenant relationship subsisted when the Tribunal entertained the dispute; the High Court had already rejected the claim that the respondent had vacated the premises.
The High Court found on a balance of probabilities that the respondent never abandoned the tenancy, having actively pursued Tribunal orders to restore his possession after forcible removal. The landlord installed a new tenant six days after the illegal removal while Tribunal orders were in force, described as 'procedural impunity'. No fresh evidence of changed circumstances was laid before the Tribunal between 11/5/2017 and 16/5/2017.
Right to be heard of the unnamed new tenant
The ground fails: the application before the Tribunal was the appellant's, not for joinder, and the point was not canvassed there, so it cannot be raised as a ground of appeal.
The application giving rise to this appeal was filed by the appellant to strike out the respondent's case for want of jurisdiction. It was not an application for joinder of the unnamed new tenant, and the new tenant's right to be heard was never an issue before the Tribunal. The point is therefore improperly raised for the first time on appeal.
Legal principles established
#- A litigant will not be permitted to re-open before a tribunal an issue already conclusively determined by the High Court absent evidence of changed circumstances; doing so is an abuse of process.
- A party should not retain an advantage obtained through a planned and blatant unlawful act (quoting Cockar JA in the Ripples case).
Court orders
#- 1.The interlocutory appeal is dismissed
- 2.The appellant shall bear the costs of the appeal
- On appeal from
- Business Premises Rent Tribunal (Thika BPRT Case No 15 of 2016)
- Thika BPRT Case No 15 of 2016
- Jurisdiction invoked
- Appeal from a ruling of the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 (specific appellate provision not quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Njoroge Ndumbi v Kavore Kariuki [2021] KEELC 3395 (KLR)", Case Analysis (2021). Not stated in the judgment (interlocutory appeal from Thika BPRT Case No 15 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3395/eng@2021-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.