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ELCDismissedEnvironment and Land Appeal E001 of 2021· [2022] KEELC 15693 (KLR)

Adventure Adrenalin Africa Limited v Hartley

Environment and Land Court
9 December 2022
7,110 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed a landlord can end a business tenancy to live in the premises, but tenants get 90 days to move out.

What this practically means

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Executive summary

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The tenant, Adventure Adrenalin Africa Limited, appealed against the decision of the Business Premises Rent Tribunal (Hon Gakuhi Chege, delivered November 5, 2021) in BPRT No 17 of 2021, which dismissed its reference and upheld the landlord Hellen Kay Hartley's notice dated November 24, 2020 terminating their controlled tenancy over Kwale/Diani Beach Block/808 on the ground that she intended to occupy the premises as her and her family's residence, with an eviction order in default. The tenant contended the landlord had not proved a firm and settled intention, that the notice was defective and unknown in law, that the tribunal impermissibly reopened the question of the controlled tenancy, ignored pending cases, and wrongly ordered immediate eviction without a grace period. Dena J, guided by Selle v Associated Motor Boat Co, condensed the grounds into four issues. The court held the landlord had proved on a balance of probability her genuine intention to occupy, supported by uncontested documentary evidence of the loss of her Naivasha accommodation, and declined to second-guess the tribunal's assessment of demeanour. The notice complied with sections 4(2), 4(4) and 7(1)(g) of Cap 301 - the court corrected a typographical error in the statutory text ('at' for 'as' his residence) - and section 9(3)'s 12-month bar ran from the tribunal's own determination, not Justice Yano's judgment. Order 50 rule 4 recess days did not apply to a statutory notice. However, the order for immediate eviction was unrealistic for a going-concern tenant of over six years. The appeal was dismissed with costs to the landlord, save that the tenant was given 90 days to vacate, the rent deposited in court was released to the landlord, and rent from November 6, 2021 to vacant possession was payable with interest at court rates. The landlord's claim for mesne profits was declined for want of pleading and a cross-appeal.

Key legal issues

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01

Proof of landlord's intention to occupy the premises as residence under section 7(1)(g)

Holding

The landlord proved on a balance of probability a genuine intention to occupy the premises as her and her family's residence; the tribunal's finding was not disturbed.

Reasoning

The landlord's witness statement was backed by documentary evidence: incorporation records of the family company, the conservancy lease and its mutual termination, and correspondence showing loss of the Naivasha accommodation. The court applied the reasonable man test, declined to second-guess the tribunal's assessment of demeanour, and held prior notices did not permanently bar genuine new grounds.

p. 8
02

Validity of the termination notice dated November 24, 2020

Holding

The notice was valid and compliant with sections 4(2), 4(4), 4(5) and 7(1)(g) of Cap 301; the ground cited was known in law and the two-month period was met.

Reasoning

The court corrected a typographical error in the version of section 7(g) used by the parties ('at' should read 'as' his residence), confirming residence as a valid ground. The two-month period runs from service to the effective date, and Order 50 rule 4 recess days do not apply to a statutory notice. Section 9(3) was not offended as the 12 months ran from the tribunal's own determination.

p. 9
03

Order for immediate eviction without grace period

Holding

The order for immediate possession was unrealistic; the tribunal's decision was upheld except for that order, and a 90-day grace period was substituted.

Reasoning

The tenant's business was a going concern and it had occupied the premises for over six years. The Act envisaged not less than two months, which the court treated as the irreducible minimum, but in the interests of a proper transition it granted 90 days to vacate.

p. 10
04

Alleged reopening of the question whether the tenancy was controlled

Holding

The tribunal did not err; it acknowledged the controlled tenancy and merely gave additional reasons, in exercise of its lawful discretion, not to extend the tenancy.

Reasoning

The controlled nature of the tenancy was affirmed in prior proceedings, but the tribunal was entitled to consider new circumstances from April 2020. Its discretion to extend or not extend the tenancy absent party consent was legally conferred, and the tenant had already benefited beyond the two-year term.

p. 11
05

Pending cases and abuse of process

Holding

The pendency of ELC 257 of 2017 and Tribunal Case No 68 of 2020 did not bar the termination notice, as the subject disputes were different.

Reasoning

The tribunal had found the pending litigation concerned different matters, and it would be a travesty of justice to hold that no notice could issue while any litigation was pending. The court had already found the tribunal right to confine itself to the current reference and the notice complied with the Act.

p. 11

Legal principles established

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  • On a first appeal, the court reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • A landlord under section 7(1)(g) of Cap 301 may terminate a controlled tenancy on the ground of intending to occupy the premises as his residence, and genuineness of intention is a question of fact best determined by the tribunal that heard the evidence.
  • The 12-month bar in section 9(3) of Cap 301 runs from the date of the Tribunal's determination, not from a superior court's judgment on appeal, and the Act is silent on appeals.
  • Order 50 rule 4 of the Civil Procedure Rules (omission of the Christmas recess) applies to amending, delivering or filing pleadings or doing of acts ejusdem generis therewith, not to the computation of a statutory termination notice.
  • A tenant cannot impose or force himself on a landlord; courts must ensure no individual is prevented from taking possession and enjoying their property.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Appellant tenant to vacate the suit premises within 90 days of the date of judgment, failing which the landlord respondent may undertake the eviction
  3. 3.Rent deposited in court to be released to the respondent landlord
  4. 4.Appellant tenant to pay rent payable from November 6, 2021 up to the date of delivery of vacant possession to the landlord
  5. 5.Interest at court rates

Authorities

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Legislation

  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 4(2)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 4(4)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 4(5)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 7(1)(g)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)section 9(3)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)sections 12(1) and 12(e); sections 14(1), 14(2) and 15(4)
  • Civil Procedure RulesOrder 50 rule 4

Cases cited (5)

  • Selle Vs Associated Motor Boat Co
    (1968) EA 123

    Duty of a first appellate court to reconsider, re-evaluate the evidence and draw its own conclusions.

  • Gurdial Singh & Ano Vs Indian Spray Painters
    (1995) eKLR

    Cited by the appellant on the requirement of a firm and settled intention to occupy.

  • Eldomart Holdings Ltd Vs Ticket Company Ltd
    (2019) eKLR

    Cited by the appellant on intention to occupy; the court distinguished it as concerning business use, not residence.

  • Lavington Green Vs John Njoroge Kinuthia

    Genuineness of a landlord's intention is a question of fact best determined by the tribunal that heard the evidence (Khamoni J).

  • Kasturi Limited vs Nyeri Wholesalers
    (2014) eKLR

    A tenant cannot impose or force himself on a landlord; courts must ensure possession and enjoyment of property.

On appeal from
Business Premises Rent Tribunal (BPRT)
BPRT No 17 of 2021 (Adventure Adrenalin Africa Limited v Hellen Kay Hartley)
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal to the Environment and Land Court under the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301); jurisdiction admitted by both parties

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, "Adventure Adrenalin Africa Limited v Hartley", Case Analysis (2022). Environment and Land Appeal E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15693/eng@2022-12-09

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