David Cullen v Samuel Kiptalai & 2 others [2021] KEELC 3696 (KLR)
The bottom line
#Kenya's High Court ruled the Business Premises Rent Tribunal cannot handle disputes over residential houses—only shops, hotels or catering establishments.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Business Premises Tribunal over the reference
The Tribunal lacked jurisdiction because the leased premises were a two-bedroomed house, not a shop, hotel or catering establishment, and thus not a controlled tenancy under Cap 301.
The Tribunal is a creature of statute whose powers are confined to controlled tenancies, defined as tenancies of a shop, hotel or catering establishment. The lease was in writing, described a two-bedroomed semi-permanent house at Kambi ya Samaki, and the parties later entered a sale agreement terminating the tenancy. Extraneous oral evidence that the premises ran a restaurant could not confer jurisdiction, as the court cannot rewrite a written contract.
Whether the sale agreement of 4th June 2016 extinguished the lease
The tenancy was terminated when the parties entered into the sale agreement, taking the dispute outside the Tribunal's purview.
It was not disputed that the written lease was for five years, renewable, and that the parties later entered into a sale agreement for the house and one acre at Kshs. 1,000,000, part of which was paid. The court found the tenancy ended upon entry into the sale agreement, so any dispute over validity or breach of that agreement was a matter for the courts, not the Tribunal.
Legal principles established
#- A tribunal's jurisdiction is limited by statute and it can only do what the statute empowers it to do; its jurisdiction extends only to controlled tenancies.
- Courts and tribunals cannot rewrite or vary the terms of parties' contracts.
- An appellate court will not interfere with a discretionary decision unless the decision is plainly wrong or the judge misdirected himself in law or misapprehended the facts.
Court orders
#- 1.The appeal is allowed as prayed
- 2.The Tribunal's ruling of 26th May 2020 is set aside, the Tribunal having had no jurisdiction to hear and determine the reference
- 3.Costs of the appeal to the appellant
- On appeal from
- Business Premises Rent Tribunal
- Not stated in the judgment
- Jurisdiction invoked
- Appeal from the Business Premises Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)
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.
- Republic v Business Rent Tribunal; Ligi Limited & another (Interested Parties); Unga Investment Limited (Exparte Applicant)[2023] KEELC 17694 (KLR)18 May 2023
Cite this brief
#Cite this brief
Caselaw, "David Cullen v Samuel Kiptalai & 2 others [2021] KEELC 3696 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3696/eng@2021-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.