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ELCDismissedEnvironment and Land Appeal E016 of 2022· [2023] KEELC 18269 (KLR)

Ngunjiri (Administrator of the Estate of Muraya Chege (Deceased) v Muhia

Environment and Land Court
15 June 2023
2,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, landlord and administrator of the estate of Muraya Chege (deceased), appealed against the whole decision of the Business Premises Rent Tribunal (Vice Chair Hon. Patricia May) of 19 April 2022 in BPRT Case No. E026 of 2021, which had declared the landlord's notices of termination illegal and defective, restrained the landlord from evicting, harassing or intimidating the tenant, and awarded the tenant costs of Kshs. 25,000 to be deducted from rent. The appellant contended the Tribunal lacked jurisdiction because the two-year lease had expired, that the reference was filed out of time without leave, and that the injunction shielded the tenant from paying rent. The respondent maintained the notices did not comply with section 4 of Cap 301 and that continued acceptance of rent converted the tenancy into a periodic, controlled tenancy. The court framed four issues: jurisdiction, validity of the notices, the injunction, and costs. It held the tenancy was controlled since the tenant remained in occupation and the landlord received rent after the purported termination, so the Tribunal had jurisdiction. The 5/8/2019 notice was invalid, held in abeyance in bad faith while rent was collected; the 16/9/2021 notice was illegal for non-compliance with section 4(2) and (5) as to form and content. The injunction was fit and proper and did not excuse payment of rent. Applying section 27(1) of the Civil Procedure Act and Jasbir Singh Rai, the court dismissed the appeal with costs to the respondent, noting no order striking out the reference was necessary as it had been conclusively settled.

Key legal issues

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01

Jurisdiction of the Tribunal over the tenancy

Holding

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.

Reasoning

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.

p. 5
02

Validity of the termination notices

Holding

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.

Reasoning

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.

p. 5
03

Injunction against eviction

Holding

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.

Reasoning

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.

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Costs

Holding

Costs follow the event under section 27(1) of the Civil Procedure Act; the appellant, having lost, must pay the respondent's costs.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 2
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 4(2) and (5)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 6 and 10
  • Land Actsections 60 and 66
  • Civil Procedure Actsection 27(1)
  • Constitution of KenyaArticle 50

Cases cited (6)

  • United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd
    [1985] EA 898

    The limits on an appellate court's interference with a discretionary decision.

  • Prahant Sampant V Fatuma Abgao Mohammed & Anor
    [2014] eKLR

    Relied on by the appellant on termination of lease and notice requirements.

  • Housing Finance Co. of Kenya Ltd V Njuguna
    LLR No. 1176 (CCK)

    Relied on by the respondent on notice introduced without tenant's knowledge.

  • Margaret Njeri Muiruri v Bank of Baroda (Kenya) Ltd
    [2014] eKLR

    Cited by the respondent in support of the Housing Finance decision.

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

    Relied on by the respondent on holding over and periodic tenancy.

  • Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012; [2014] eKLR

    Costs follow the event; court's discretion on costs.

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

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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, "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.