Ngunjiri (Administrator of the Estate of Muraya Chege (Deceased) v Muhia
The bottom line
#A Kenyan landlord lost an appeal because his eviction notices skipped mandatory legal formalities, and collecting rent kept the tenant legally protected.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Tribunal over the tenancy
The Tribunal had jurisdiction because the tenancy was a controlled tenancy - the written lease did not take effect as the tenant remained in occupation and the landlord received rent.
The lease of 5/8/2019 was for two years, but a termination notice was issued the same day. The tenant remained in occupation and the landlord continued receiving rent for two years. In the absence of an effective written agreement, the tenancy fell within the definition of a controlled tenancy under section 2 of Cap 301, conferring jurisdiction on the Tribunal.
Validity of the termination notices
The notice of 5/8/2019 was invalid, amounting to economic duress and bad faith; the notice of 16/9/2021 was illegal for non-compliance with section 4(2) and (5) of Cap 301 as to form and content.
Section 4(2) requires notice in the prescribed form and section 4(5) requires specification of grounds and notification of the tenant's one-month response right. The 16/9/2021 notice was wanting in form (not Form A) and content, omitting the mandatory response requirement. The 2019 notice was held in abeyance for two years while rent was collected, amounting to bad faith.
Injunction against eviction
The injunction restraining the landlord from evicting, harassing or intimidating the tenant was fit and proper given the illegal notices, and did not shield the tenant from paying rent.
The court invoked the protective long title of Cap 301 and found the injunction proper. The orders did not permit occupation without payment of rent nor bar further lawful notices; the appellant's contrary interpretation was not persuaded.
Costs
Costs follow the event under section 27(1) of the Civil Procedure Act; the appellant, having lost, must pay the respondent's costs.
Guided by section 27(1) of the Civil Procedure Act and the Supreme Court decision in Jasbir Singh Rai, the court exercised its discretion on the principle that costs follow the event, awarding costs of the appeal to the successful respondent.
Legal principles established
#- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong.
- Where a tenant continues in occupation and the landlord continues to receive rent after expiry of a written lease, the resulting tenancy is a controlled tenancy under Cap 301.
- A tenancy notice must be in the prescribed form and must specify the grounds and inform the tenant of the requirement to respond in writing within one month, failing which it is illegal.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent.
- On appeal from
- Business Premises Rent Tribunal
- BPRT Case No. E026 of 2021 Nakuru
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Baringo United Company Limited v Bina Wholesalers & 2 others (Environment & Land Case E196 of 2021) [2024] KEMC 133 (KLR)[2024] KEMC 133 (KLR)25 Jul 2024
- Baringo United Company Limited v Bina Wholesalers & 2 others (Environment & Land Case E196 of 2021) [2024] KEMC 133 (KLR)[2024] KEMC 133 (KLR)25 Jul 2024distinguished
Cite this brief
#Cite this brief
Caselaw, "Ngunjiri (Administrator of the Estate of Muraya Chege (Deceased) v Muhia", Case Analysis (2023). Environment and Land Appeal E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18269/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.