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ELCAllowedNot stated in the judgment· [2021] KEELC 3696 (KLR)

David Cullen v Samuel Kiptalai & 2 others [2021] KEELC 3696 (KLR)

High Court of Kenya
1 April 2021
3,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an appeal to the High Court at Eldoret against a ruling of the Business Premises Rent Tribunal dated 26th May 2020. The respondents had filed a reference before the Tribunal seeking to levy distress for rent arrears and an order that the appellant vacate the suit premises. The appellant objected that the Tribunal lacked jurisdiction because the leased premises were a two-bedroomed semi-permanent house at Kambi ya Samaki, not a shop, hotel or catering establishment, and therefore not a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301). The appellant further argued that a sale agreement dated 4th June 2016 for the house and one acre of land at Kshs. 1,000,000, under which Kshs. 120,000 was paid, had terminated the lease, and that the Tribunal erred in converting the purchase instalment into rent. The respondents maintained that the sale was rescinded for want of ratification and non-payment of the balance, that the part payment was properly converted to rent arrears, and that the appellant remained a tenant. The appellant relied on authorities on jurisdiction and the exclusion of extrinsic evidence; the respondents urged dismissal. M. A. Odeny J held that the Tribunal's jurisdiction is confined by statute to controlled tenancies, that the written lease described a house rather than business premises, and that entry into the sale agreement terminated the tenancy, taking the dispute outside the Tribunal's purview. Extrinsic evidence could not confer jurisdiction. The court allowed the appeal, set aside the Tribunal's decision and awarded costs to the appellant.

Key legal issues

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01

Jurisdiction of the Business Premises Tribunal over the reference

Holding

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.

Reasoning

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.

p. 5
02

Whether the sale agreement of 4th June 2016 extinguished the lease

Holding

The tenancy was terminated when the parties entered into the sale agreement, taking the dispute outside the Tribunal's purview.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is allowed as prayed
  2. 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. 3.Costs of the appeal to the appellant

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 2(1)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 9
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 12(1), 12(1)(a)-(n), 12(4)
  • Civil Procedure Rules 2010Order 21, rules 4 and 5

Cases cited (11)

  • JOHN ONYANCHA ZURWE VS ORETI ATINDE
    Civil Appeal No. 217 of 2003
  • POTGIETER V STUMBERG AND ANOR.
    (Civil Appeal No 20 of 1971) [1972] EACA 19
  • THE OWNERS OF MOTOR VESSEL "LILLIAN S" VS CALTEX OIL KENYA
    [1989] KLR 1
  • LUCY NJERI NJOROGE V KAIYAHE NJOROGE
    [2015] eKLR
  • Choitram & Others vs Mystety Model Hair Saloon
    (1972) EA 525
  • Barnard vs National Dock Labour Board
  • Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
  • REPUBLIC V BUSINESS PREMISES RENT TRIBUNAL & ANOTHER EX-PARTE ALBERT KIGERA KARUME
    [2015] eKLR
  • Re Hebtulla Properties Ltd.
    [1979] KLR 96; [1976-80] 1 KLR 1195
  • Housing Finance Company of Kenya Ltd v Njuguna
    KLR 1176(CCK)
  • United India Insurance Co. Ltd Versus East African Underwriters (Kenya) Ltd
    [1985] EA 898
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.