Intercountries Importers & Exporters Ltd v Total Security Limited & 7 others [2021] KEELC 3489 (KLR)
The bottom line
#A Kenyan court confirmed that tenants carrying on business in a premises are protected by rent law, even if their lease was never signed or stamped.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Business Premises Rent Tribunal
The Tribunal had jurisdiction because the subsisting two-year tenancies were within Cap 301 and the tenants were protected tenants carrying on business on the premises
The references were founded on two-year tenancy agreements from 1 July 2015 to 30 June 2017 containing termination clauses. The Tribunal's jurisdiction is derived from the facts placed before it. Even the unexecuted lease of the 2nd Respondent did not matter, since the nature of the business carried out, not the document, determines whether there was a tenancy. The tenants were therefore protected tenants under Cap 301.
Effect of non-execution and non-stamping of tenancy agreements
Non-execution and non-stamping did not bar reliance on the tenancies; an unregistered tenancy agreement can operate as an enforceable contract
The 2nd Respondent's lease was not executed, but it was in occupation operating its business and thus a protected tenant under Cap 301. The stamping objection was raised for the first time on appeal and was in any event untenable, as unregistered lease or tenancy agreements may operate as enforceable contracts between the parties.
Res judicata, sub judice and lis pendens
The Tribunal references were neither res judicata, sub judice nor caught by lis pendens because the parties and issues before the Tribunal were different from those in ELC 1400 of 2004 and the Court of Appeal
The 1st and 2nd Respondents were not parties to ELC 1400 of 2004 or the Court of Appeal proceedings; the notice letters relied on were addressed to different entities. The 3rd Respondent remained in occupation and could lawfully let the property, so no lis pendens arose, and the Tribunal issue was distinct from the ownership dispute before the Court of Appeal.
Obligation to implement the Court of Appeal consent
The Tribunal Chairperson was under no obligation to implement the consent order filed in the Court of Appeal; his observations on the consent were later vindicated when it was set aside
The consent of 27 September 2016 did not bind the Tribunal, whose reference involved protected tenants who were not parties to it. The Chairperson had observed the consent disregarded protected tenancies, and the Court of Appeal set the consent aside on 22 September 2019 partly for non-disclosure of the tenancies.
Legal principles established
#- The jurisdiction of the Tribunal is deduced from the facts put before it; an unexecuted lease does not defeat tenancy where the tenant in fact carries on business on the premises
- An unregistered or unstamped lease or tenancy agreement can operate as an enforceable contract between the parties
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the 1st, 2nd and 3rd Respondents
- On appeal from
- Business Premises Rent Tribunal, Nairobi
- Reference No. 902 & 903 (consolidated) of 2016
- Jurisdiction invoked
- First appellate jurisdiction under the Landlord and Tenant (Business Premises) legislation (Cap 301) against a Tribunal ruling; heard as an appeal from the BPRT
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Intercountries Importers & Exporters Ltd v Total Security Limited & 7 others [2021] KEELC 3489 (KLR)", Case Analysis (2021). ELC Appeal No. 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3489/eng@2021-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.