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ELCPartially AllowedMombasa High Court Civil Appeal No. 79 of 2012 (as re-filed 24 May 2017)· [2022] KEELC 1874 (KLR)

Total Kenya Limited v Drumcon Kenya Limited [2022] KEELC 1874 (KLR)

High Court of Kenya, Environment and Land Court
26 January 2022
MSMunyao Sila
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant landlord (Kenya Oil Company) had sublet part of premises on LR No. 9695, Changamwe, Mombasa to the respondent tenant for drum manufacturing under a 1985 lease. In 2007 the landlord issued a termination notice intending to occupy the premises to expand its lubricants business. The tenant contested the notice before the Business Premises Rent Tribunal. After a first judgment in the tenant's favour in 2012 and a retrial ordered by Kasango J in 2015, Tribunal Chairman Hon. Mbichi Mboroki again found for the tenant on 28 April 2017, restraining the landlord from interfering with its possession. The landlord appealed. Before writing judgment, Munyao Sila J raised, suo motu, whether the BPRT had jurisdiction at all, since the premises were used for industrial purposes. Counsel filed further submissions on the point. The court held that Cap 301 confines the Tribunal's jurisdiction to controlled tenancies of shops, hotels and catering establishments. A 'shop' means premises occupied for retail or wholesale trade or for rendering services for money or money's worth; manufacturing premises fall outside these definitions. Following the Court of Appeal decision in Panesar v Balbir (1972) EA 208, which held that premises used for manufacturing furniture were not a 'shop', the court found the drum-manufacturing premises to be industrial and outside the Act. The Tribunal's proceedings and judgment were therefore a nullity and were set aside, with the parties to proceed as if no dispute had been determined. The court declined to consider the merits of the appeal. Because neither party had verified the Tribunal's jurisdiction before litigating, each party was ordered to bear its own costs. Judgment delivered on 26 January 2022 at Mombasa.

Key legal issues

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01

Jurisdiction of the BPRT over industrial premises

Holding

The BPRT has no jurisdiction over industrial premises; it may only determine disputes over controlled tenancies of shops, hotels or catering establishments

Reasoning

Cap 301 protects tenants of shops, hotels and catering establishments. 'Shop' covers premises occupied wholly or mainly for retail or wholesale trade or rendering services for money or money's worth. The leased premises were used for drum manufacturing - an industrial purpose, not retail, wholesale or service - and so fell outside the Act. Following Panesar v Balbir, manufacturing premises are excluded, and the Tribunal's proceedings were a nullity.

p. 3
02

Characterisation of the suit premises

Holding

The premises were industrial, let for drum manufacturing, and thus not a shop, hotel or catering establishment

Reasoning

The lease expressly let the premises for drum manufacturing; both parties intended industrial use (blending lubricants). The court distinguished authorities on garages (services) and schools, holding that manufacturing involves neither retail/wholesale trade nor rendering of services, so the premises fell outside the statutory definitions.

p. 3

Legal principles established

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  • The Business Premises Rent Tribunal has no jurisdiction over industrial/manufacturing premises; its jurisdiction is confined to shops, hotels and catering establishments under Cap 301
  • A decision of a tribunal without jurisdiction is a nullity

Court orders

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  1. 1.The proceedings and decision of the Business Premises Rent Tribunal are set aside as a nullity for want of jurisdiction
  2. 2.The parties must proceed as if no dispute was ever determined by the Tribunal
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301, preamble and Section 2
  • Transfer of Property Act of IndiaSection 106

Cases cited (5)

  • David Cullen vs Amuel Kiptalai & 2 Others
    Eldoret ELC No. 13 of 2020
  • John Onyancha Zurwe vs Oreti Atinde
    Civil Appeal No. 217 of 2003
  • Nairobi A-One Auto Services Limited vs Jayantilal O. Kantaria
    ELC No. 578 of 2014
  • Republic vs The Chairman Business Premises Rent Tribunal & Another ex parte Dr. Daniel Wanjohi Kabithe and Lydia Wangui Kabithe
    (2019) eKLR
  • Panesar vs Balbir
    (1972) EA 208
On appeal from
Business Premises Rent Tribunal
Reference before the BPRT (judgment by Chairman Hon. Mbichi Mboroki)
Jurisdiction invoked
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, "Total Kenya Limited v Drumcon Kenya Limited [2022] KEELC 1874 (KLR)", Case Analysis (2022). Mombasa High Court Civil Appeal No. 79 of 2012 (as re-filed 24 May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1874/eng@2022-01-26

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