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ELCPartially AllowedEnvironment and Land Case Civil Suit E005 of 2020· [2023] KEELC 17335 (KLR)

Mbandu v Chohan & another

Environment and Land Court
11 May 2023
SOS. O. Okong'o
4,652 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan landlord won an eviction order after a tribunal dismissed his tenant's challenge, turning the tenant into a trespasser.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Kisumu/Municipality/Block 4/757 and 758, leased the property to the 1st Defendant in January 2013 for two years for commercial use as a garage. The lease was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. In October 2016 the plaintiff served a termination notice under section 4(2) of the Act; the 1st Defendant filed a reference at the Business Premises Rent Tribunal, which was dismissed for non-attendance on 9th October 2019 and never stayed or set aside. After the plaintiff's demand of 1st July 2020 went unheeded, he sued for eviction, a permanent injunction, and an order compelling Kisumu County to reinstate residential user. The 1st Defendant raised a preliminary objection on jurisdiction (dismissed in July 2021) and later renewed the jurisdiction point substantively, also contending the tenancy persisted and his structures were temporary. The court held that although the tenancy was controlled, the dismissal of the reference meant the termination notice took effect, ending the landlord-tenant relationship; the 1st Defendant became a trespasser and only the ELC could evict him. Applying the Court of Appeal's decision in Nandlal Jivraj Shah v Kingfisher Properties, the court found the suit competent and the plaintiff's case proved on a balance of probabilities. Judgment was entered for the plaintiff against the 1st Defendant: vacant possession within 60 days, failing which warrants of eviction could issue with police assistance, plus costs. The claim against the 2nd Defendant for reinstatement of residential user was dismissed for lack of proof, the plaintiff having himself leased the property for commercial use.

Key legal issues

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01

Competency of the suit given the controlled tenancy and the Tribunal's jurisdiction

Holding

Although the tenancy was a controlled tenancy within the Tribunal's jurisdiction, the dismissal of the 1st Defendant's reference terminated the tenancy, so the ELC was the proper forum for an eviction claim

Reasoning

The court accepted the tenancy was controlled and that termination should have followed section 4 of the Act. However, the Tribunal dismissed the 1st Defendant's reference on 9th October 2019 and that order was never stayed or set aside. The termination notice therefore took effect, ending the landlord-tenant relationship. With no tenancy in existence, the Tribunal had no jurisdiction and the former tenant became a trespasser, evictable only by this court.

p. 6
02

Whether the 1st Defendant was a trespasser

Holding

Yes - the tenancy stood terminated by operation of law upon dismissal of the reference, making continued occupation trespass

Reasoning

Relying on the Court of Appeal decision in Nandlal Jivraj Shah v Kingfisher Properties, the court held that only the filing of a reference suspends a termination notice; dismissal of the reference means the notice takes effect by default. The tenancy ended on 1st January 2017. The subsequent notice to vacate of 1st July 2020 was unnecessary but sufficient. Continued occupation thereafter constituted trespass.

p. 7
03

Whether the 1st Defendant's developments amounted to unauthorised alterations

Holding

Yes - the developments altered the character of the property without the plaintiff's consent and were not merely temporary structures

Reasoning

The 1st Defendant claimed the structures were temporary steel sheds requiring no consent. The court rejected this, reasoning that the 1st Defendant would not have sought development approval from the 2nd Defendant had the structures been temporary. The plaintiff proved the developments altered the property's character without consent, though this finding was not necessary to the eviction outcome.

p. 7
04

Claim against the 2nd Defendant for reinstatement of residential user

Holding

Dismissed - the plaintiff did not prove a change of user from residential to commercial

Reasoning

The plaintiff leased the property for commercial purposes himself, and the 1st Defendant's commercial use was consistent with the lease. The plaintiff adduced no evidence establishing that a formal change of user had occurred at the instance of the 1st Defendant. The claim against the County therefore failed and the suit against the 2nd Defendant was dismissed.

p. 8

Legal principles established

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  • Upon dismissal of a tenant's reference against a termination notice, the controlled tenancy terminates and the former tenant becomes a trespasser; the Tribunal loses jurisdiction and only the ELC can order eviction

Court orders

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  1. 1.The 1st Defendant shall vacate and hand over possession of Kisumu/Municipality/Block 4/757 and Kisumu/Municipality/Block 4/758 within sixty (60) days from the date of judgment, in default of which the Plaintiff may apply for warrants of forceful eviction with the assistance of the OCS Kondele Police Station if necessary
  2. 2.The Plaintiff shall have the costs of the suit
  3. 3.The plaintiff's suit against the 2nd Defendant is dismissed

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 2(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 4(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 11
  • Physical and Land Use Planning Act, 2019section 58(4)
  • Physical and Land Use Planning (Development Control Enforcement) Regulations 2021Rule 17
  • Civil Procedure RulesOrder 2 Rule 16

Cases cited (1)

  • Nandlal Jivraj Shah & 2 others (all trading as Jivaco Agencies) v. Kingfisher Properties Limited
    [2015] eKLR

    Only the filing of a reference suspends a tenancy notice; without a reference the controlled tenancy ends when the notice period lapses and the Tribunal loses jurisdiction

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes) - the court exercised original jurisdiction to order eviction of a trespasser

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbandu v Chohan & another", Case Analysis (2023). Environment and Land Case Civil Suit E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17335/eng@2023-05-11

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