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ELCAllowedELC Appeal No. E21 of 2021· [2022] KEELC 716 (KLR)

John Mwangi Karanja v Susan Kiprono & 2 others [2022] KEELC 716 (KLR)

Environment and Land Court
24 March 2022
LOL. A. Omollo
3,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nakuru against the judgment of the Business Premises Rent Tribunal (Hon. P. May, Vice Chair) which terminated the Appellant's tenancy of premises at LR. No. 4/273 Kenya Industrial Estates Shabaab, Nakuru and authorized eviction and distress for rent arrears of Kshs. 180,000. The Appellant advanced three grounds: that no termination notice was served on him, that he had permission to sublet, and that the Tribunal failed to interrogate his documents. The Respondents maintained that a notice dated 3rd November 2019 effective 1st February 2020 was duly issued and valid under section 4 of Cap 301, and that the Appellant failed to prove consent to sublet, relying on Evans Otieno Nyakwana v Cleophas Bwana Ongaro. The court, re-evaluating the evidence as on a first appeal, found the notice complied with section 4 as to form, duration and grounds, but that there was no affidavit of service and no finding by the Tribunal that the notice had actually been served. Proof of service being paramount before eviction orders, the Tribunal erred in issuing eviction orders without it. On subletting, the court found no written tenancy agreement, noted that the initial landlord never complained, and distinguished New Calabash Limited, holding that subletting should not per se ground termination and the tenant should be allowed to purge the breach. The third ground was unsubstantiated and not addressed. The appeal was allowed, the Tribunal's judgment set aside, each party ordered to bear its own costs, and the Respondent given liberty to serve a fresh notice of termination in compliance with Cap 301.

Key legal issues

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01

Proof of service of the termination notice

Holding

The Tribunal erred in issuing eviction orders without proof of service of the termination notice; no affidavit of service was on record and the Tribunal never satisfied itself that the notice had been served.

Reasoning

Section 4(1) and (2) of Cap 301 require notice in the prescribed form before termination of a controlled tenancy, and section 4(6) prescribes the modes of giving notice. The court found the notice complied with the prescribed form and grounds, but the record contained no affidavit of service nor any finding that service occurred. Since the tenant's right to file a reference depends on receipt of the notice, proof of service is paramount before eviction orders are granted.

p. 4
02

Subletting without consent as breach of an implied term

Holding

The Tribunal erred in finding the Appellant breached the controlled tenancy by subletting; in the absence of a written tenancy agreement, the Tribunal gave no reason to prefer the landlord's testimony and failed to appreciate that consent to sublet must not be unreasonably withheld and breach can be purged.

Reasoning

The implied term in item (xii) of the schedule to Cap 301 prohibits subletting without lessor's consent, which shall not be unreasonably withheld. There was no written tenancy agreement, and the initial landlord never complained of the subletting; the sub-tenant had even entered an independent tenancy. The court distinguished New Calabash Limited, where a written agreement expressly prohibited subletting. The protective purpose of Cap 301 also weighed against termination for subletting alone.

p. 5
03

Third ground - failure to interrogate documents

Holding

The third ground of appeal was unsubstantiated and was not addressed.

Reasoning

The Appellant did not submit on the ground that the Tribunal failed to interrogate the documents produced. Without substantiation, the court could not make sense of the ground and declined to address it.

p. 5
04

Standard of interference with a discretionary decision on first appeal

Holding

The court applied the settled principles in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd on when an appellate court may interfere with a discretionary decision.

Reasoning

The court adopted the classic test: interference is warranted where the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision is plainly wrong. The Tribunal's failure to interrogate service of the notice amounted to such errors.

p. 5

Legal principles established

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  • The only way to establish the giving of a termination notice under section 4 of Cap 301 is by the landlord filing an affidavit of service and the tribunal satisfying itself that the prescribed modes of service under section 4(6) were employed; eviction orders cannot issue without proof of service.
  • Subletting should not per se be a ground for termination of a controlled tenancy; the tenant should be allowed to purge the breach by obtaining consent or ceasing to sublet.

Court orders

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  1. 1.The Appeal is allowed and the Judgment of the Tribunal delivered on 16th July, 2021 is set aside
  2. 2.Each party shall bear its own costs in the instant Appeal and costs in the proceedings before the Tribunal
  3. 3.The Respondent is at liberty to serve a fresh notice of termination in compliance with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4(1), 4(2), 4(4), 4(5), 4(6); Section 2(1)(a); Schedule item (xii); long title
  • Evidence ActSection 107(1); Section 119 (cited as section 199)
  • Civil Procedure ActSection 27(1)

Cases cited (4)

  • Evans Otieno Nyakwana vs. Cleophas Bwana Ongaro
    [2015] eKLR
  • New Calabash Limited Vs Joseph Odero
    [2018] EKLR
  • Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
  • United India Insurance Co. Ltd Vs East African Underwriters (Kenya) Ltd
    [1985] EA 898
On appeal from
Business Premises Rent Tribunal
Nakuru BPRT Case No. 96 of 2020
Jurisdiction invoked
First appeal from the Business Premises Rent 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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Cite this brief

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Cite this brief

Caselaw, "John Mwangi Karanja v Susan Kiprono & 2 others [2022] KEELC 716 (KLR)", Case Analysis (2022). ELC Appeal No. E21 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/716/eng@2022-03-24

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