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ELCDismissedEnvironment and Land Appeal 2 of 2020· [2022] KEELC 14955 (KLR)

Embu Mission Church v Njeru & 4 others

Environment and Land Court at Embu
15 November 2022
AKA Kaniaru
4,001 words in judgment
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The bottom line

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Kenya's Environment and Land Court upheld a tribunal's decision doubling a church tenant's rent, ruling tribunals can run hearings their own way if no party is prejudiced.

What this practically means

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Executive summary

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The appellant, a tenant of commercial premises in Embu, was served with a notice under Section 4(2) of Cap 301 seeking to increase rent from Kshs 20,000/= to Kshs 40,000/= monthly. It filed a reference under Section 6 of the Act. Both parties filed valuation reports as directed; the tribunal preferred the landlords' report (which recommended Kshs 53,100/=) but awarded the Kshs 40,000/= sought in the notice, effective April 1, 2019, with costs and arrears payable within six months. The tenant appealed on six grounds, principally that the tribunal awarded a 100% increase without allowing interrogation or cross-examination of the valuation reports, failed to serve notice of the judgment date and the landlords' report, and was biased in awarding exactly the rent demanded. Kaniaru J, applying the first appellate duty in Abok James Odera, reviewed the tribunal record and found the parties present when the reports and judgment date were fixed, without any protest or request to interrogate the reports, so no prejudice arose. The tenant's own report was properly discounted as prepared for a different case (BPRT 82/2018), a finding not even challenged on appeal. The court held that tribunals have autonomy over their proceedings absent prejudice, that valuation reports are not binding but merely guide the tribunal, and that the tribunal has a wide discretion in rent assessment provided it gives reasons. Since the landlords' valuation recommended far more than was awarded, there was no bias. The appeal was dismissed with costs to the respondents and the tribunal's determination upheld.

Key legal issues

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01

Whether failure to allow cross-examination of valuers vitiated the tribunal's determination

Holding

No - the parties were present on both hearing dates, never sought to interrogate the reports or make submissions, and no prejudice was occasioned

Reasoning

The record showed both parties appeared when valuation reports were directed and when a judgment date was fixed, without protest or request to interrogate the reports. Expert reports may be relied on without calling their makers where no party objects. The tribunal treated both sides equally and the appellant raised no reservation, so the mode of proceedings caused no prejudice.

p. 5
02

Whether the tribunal erred in rejecting the tenant's valuation report

Holding

No - the report was prepared for a different case (BPRT 82/2018) and the tribunal gave reasons for its reservations; the appellant did not even complain of this ground on appeal

Reasoning

The tribunal expressly found the tenant's report was meant for a rent dispute in BPRT No 82/2018 and could not assess market rent for the suit premises. The appellant did not challenge that finding in the memorandum of appeal, and no rebuttal of the report's unsuitability was made. The tribunal's reasoned rejection was therefore valid.

p. 6
03

Whether the tribunal was biased in awarding rent exactly as demanded in the landlords' notice

Holding

No - the landlords' own valuation recommended Kshs 53,100/=, far above the Kshs 40,000/= awarded, so the tribunal did not simply adopt the notice figure

Reasoning

The tribunal relied on the respondents' comparables-based valuation, which recommended Kshs 53,100/= monthly, yet awarded only the Kshs 40,000/= sought in the notice. The appellant did not contend the comparable premises were superior. Awarding less than the valuation figure demonstrated the tribunal exercised its discretion rather than capitulating to the landlords' demand.

04

Whether the appellant was denied notice of the judgment date and service of the respondents' valuation report

Holding

Both grounds failed - the appellant's representative was present when the judgment date was fixed, and non-service was not proved

Reasoning

Daniel Waithaka, the appellant's coordinator, was recorded present on December 17, 2019 when the judgment date was set. On service, the respondents denied the allegation and put the appellant to strict proof; the appellant neither protested before judgment nor sought deferral, leading the court to disbelieve the allegation of non-service.

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions of the trial tribunal are to stand
  • Courts and tribunals have autonomy to conduct proceedings as they wish provided no party is prejudiced
  • Valuation reports filed by parties are not binding on the tribunal; they only guide it in making its determination
  • The tribunal has a wide discretion in assessing rent and is not bound to consider all factors provided it gives reasons for the factors it relies on

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.The tribunal's determination of rent at Kshs 40,000/= monthly exclusive of service charge with effect from April 1, 2019 is upheld

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4(2)
  • 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 12(1)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 9(2)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Form G (attendant regulations)

Cases cited (5)

  • Shah & Shah vs Kagunda
    1978 KLR, 35

    The tribunal's discretion must be exercised judicially having regard to the evidence before it

  • Abok James Odera T/A A J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR

    Duty of a first appellate court to re-evaluate and re-assess the evidence on the record

  • Margaret Wanjugu Nduma & 3 others v James Gichuki Gathura
    [2020] eKLR

    Duty in determining fair rent: protect tenant from unbearable rent while ensuring landlord gets a fair deal

  • Cleaners Limited vs Barclays Bank DCO
    [1972] EA 188

    Reasonableness of rent is the forefront of the tribunal's investigations; comparables are relevant to open-market rent

  • Supa Duka Nakuru Limited v Baringo United Company Limited
    (2017) eKLR

    The tribunal is free to apply whichever rent-assessment method it thinks best, including averages, if reasons are given

On appeal from
Business Premises Rent Tribunal
Case No. 19 of 2019 (Embu)
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, "Embu Mission Church v Njeru & 4 others", Case Analysis (2022). Environment and Land Appeal 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14955/eng@2022-11-15

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