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ELCDismissedNot stated in the judgment· [2021] KEELC 4510 (KLR)

Shem Thomason Machoka & another v Gilta Investment Limited & another [2021] KEELC 4510 (KLR)

High Court of Kenya
28 January 2021
JOJ. M. Onyango
2,519 words in judgment
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The bottom line

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Kenya's High Court confirmed that only a certified Rent Tribunal determination can be enforced as a court decree, and legal mistakes by a court cannot be fixed through review.

What this practically means

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Executive summary

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The Appellants traded on premises on LR No. Kisii Municipality/Block III/119 leased by the 1st Respondent, who alleged persistent rent default and issued a Notice to Terminate Tenancy. The Appellants filed no reference, and the Business Premises Rent Tribunal, through a letter by a Rent Control Inspector dated 11th October 2016, confirmed the notice had taken effect. The trial court adopted that letter as an order on 13th October 2016, and the Appellants were evicted. They moved to review and set aside the order, arguing there was no Tribunal determination capable of adoption. The trial court found it lacked jurisdiction over landlord-tenant matters and, having adopted the determination, was functus officio. On appeal, Onyango J framed two issues: whether the adopted letter was a Tribunal determination under section 14 of Cap 301, and whether the trial court should have granted review under Order 45. The court held the letter was uncertified and merely an affirmation that no reference had been filed, not a determination or order capable of ratification as a decree, following Charles Dickens v Walter Achango Oloo and Serephen Nyasani Menge. However, although the trial court erred in adopting the letter, the Appellants' review grounds failed: an incorrect comprehension of the law is not a ground for review under Order 45, and granting review on those grounds would amount to the trial court sitting on appeal over its own decision. The appeal was accordingly dismissed with costs to the Respondents.

Key legal issues

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01

Whether the letter dated 11th October 2016 constituted a determination of the Business Premises Rent Tribunal capable of adoption under section 14 of Cap 301

Holding

It did not; it was an uncertified letter by a Rent Control Inspector and could not be enforced as a decree of the court

Reasoning

Section 14(1) of the Act requires a duly certified copy of a determination or order of the Tribunal to be filed in a competent subordinate court before enforcement as a decree. The letter merely confirmed that no reference had been filed against the Notice to Terminate Tenancy and was not certified as an order or determination. Consistent Court of Appeal and High Court authority supports this reading.

p. 3
02

Whether the trial court erred in failing to review the eviction order of 13th October 2016 under Order 45

Holding

No error; although the trial court erred in adopting the letter, the grounds advanced did not meet the thresholds for review under Order 45

Reasoning

Review lies only on discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. A misconstruing of the law or erroneous legal conclusion is not a ground for review. Allowing review on such grounds would make the trial court sit on appeal of its own decision, which is prohibited.

p. 4

Legal principles established

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  • A letter by a Rent Control Inspector confirming that a Notice to Terminate Tenancy expired without a reference is not a determination or order of the Tribunal capable of certification, adoption and execution as a decree under section 14 of the Act
  • An incorrect exposition of the law or erroneous conclusion by a court is not a ground for review under Order 45 of the Civil Procedure Rules; review may only correct an error apparent on the face of the record

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the Respondents

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishment) Act (Cap 301)Sections 6(1) and 14(1)
  • Civil Procedure RulesOrder 45
  • Civil Procedure ActSection 80
  • Judicature ActSection 6

Cases cited (4)

  • Dhirajlal J. Shah & another v Vijay Amritlal Shethia
    [2018] eKLR
  • Charles Dickens v Walter Achango Oloo
    Civil Appeal No. 48 of 2015 [2015] eKLR
  • Serephen Nyasani Menge v Rispah Onsanse
    Environment and Land Case Appeal No. 11 of 2016 [2018] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    Civil Appeal No. 211 of 1996 (1997) eKLR
On appeal from
Magistrates' Court (trial court, Kisii)
Miscellaneous Application No. 157 of 2016 (and the application dated 21st October 2016)
Jurisdiction invoked
First appeal against the ruling of the trial court in a matter arising under the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act (Cap 301); specific enabling provision not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shem Thomason Machoka & another v Gilta Investment Limited & another [2021] KEELC 4510 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4510/eng@2021-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.