Kanji K. Patel & 2 others v Steelmakers Limited [2021] KEELC 3538 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a tenant who stays on after a lease expires without paying rent loses legal protection against eviction and rent recovery.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was a protected/controlled tenant entitled to Cap 301 protection after expiry of the lease
The Tribunal erred; there was no evidence of rent acceptance or continued possession with the landlords' consent after 31st July 2014, so the respondent was not entitled to protection under Cap 301.
Sections 57 and 60 of the Land Act deem a lease periodic where a lessee remains in possession with the lessor's consent, and accepting rent for two months post-termination creates a month-to-month periodic lease. The court found rent was in arrears from 2017 and no material showed the appellants accepted rent after expiry or consented to continued occupation, so the foundation for controlled-tenancy status failed.
Whether a landlord-tenant relationship still existed when the Tribunal ruled
No; the respondent had issued a notice to vacate and vacated on 21st March 2019, before the ruling of 5th July 2019.
The respondent's letter of 23rd October 2018 intimated vacation of the go-downs and office space, and the court found that henceforth no landlord and tenant relationship existed. The injunction obtained from the Tribunal was therefore granted without disclosure of material facts and ought not to have issued.
Whether the landlords could levy distress for rent arrears
Yes; the Tribunal erred in enjoining them, as the respondent admitted rent arrears.
Since the protection under Cap 301 was unavailable and material facts were not disclosed when the injunction was obtained, the landlords' right to levy distress for admitted arrears revived and the Tribunal's injunction against distress was an error.
Legal principles established
#- A lessee who remains in possession without the lessor's consent after expiry of a lease does not become a protected tenant under Cap 301; acceptance of rent after termination may, under section 60(2) of the Land Act, create a periodic lease, but the party asserting consent must prove it.
Court orders
#- 1.The appeal is allowed
- 2.The ruling of the honourable Chairman of the tribunal delivered on 5th July 2019 and the subsequent order is set aside
- 3.The same is substituted with an order dismissing the respondent's application dated 29th October 2018 with costs to the appellants
- 4.Each party to bear their/its own costs in this appeal
- On appeal from
- Business Premises Rent Tribunal
- Nairobi BPRT Case No 873 of 2018
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal to the Environment and Land Court 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, "Kanji K. Patel & 2 others v Steelmakers Limited [2021] KEELC 3538 (KLR)", Case Analysis (2021). ELC Civil Appeal No 54 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3538/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.