Restore and Renew Wellness Group Limited v Tradeline Express Company Limited & another (Environment & Land Case E129 of 2023) [2024] KEELC 75 (KLR)
The bottom line
#A Nairobi court stopped a landlord from selling a tenant's attached goods because the lease lasted five years and one month, keeping the case out of the rent tribunal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - whether the Plaintiff was a protected tenant within Cap 301 and whether the suit offended the doctrine of exhaustion
The tenancy was for five years and one month and was therefore not a controlled tenancy; the court had jurisdiction and the preliminary objection was dismissed.
Section 2 of Cap 301 defines a controlled tenancy as one not reduced into writing, or reduced into writing for a period not exceeding five years, or containing provision for termination otherwise than for breach of covenant within five years. The tenancy agreement here was for a term of five years and one month (1st November 2022 to 2027) and the Respondents did not dispute that evidence. The lease therefore fell outside the Tribunal's jurisdiction and the suit was properly before the ELC.
Whether the Plaintiff met the Giella v Cassman Brown threshold for temporary injunction
A prima facie case was established: breach of clause 2(X)/3(a) on change of user, a defective proclamation under Rule 12, heavy investment in the premises and irreparable harm made out a case for the orders sought.
The court applied the three-limb Giella test. Clause 3(a) required the 1st Defendant to immediately apply for change of user, which was only made available on 6th July/June 2023, during which period the Plaintiff could not operate. The proclamation lacked the itemised values and conditions required by Rule 12 of the Auctioneers Rules, 1997, raising doubts as to its credibility, and the Plaintiff had invested heavily in the premises and business, establishing prima facie case and irreparable harm.
Legal principles established
#- A tenancy granted for a term exceeding five years without provisions for termination within five years is not a controlled tenancy under Cap 301 and falls outside the Business Premises Rent Tribunal's jurisdiction.
- A proclamation that fails to state the value and condition of specific items as required by Rule 12 of the Auctioneers Rules, 1997 is deficient and its credibility doubtful.
Court orders
#- 1.The preliminary objection dated 9th November 2023 is dismissed.
- 2.Pending hearing and determination of the suit, an injunctive order restraining the defendants, their agents or assigns from further levying distress for rent, from selling or interfering with the Plaintiff's attached movable goods subject of the proclamation dated 9th September 2023.
- 3.The Defendants are directed to grant the Plaintiff access to the leased premises within 10 days for the purposes of removing its movable properties.
- 4.Both parties are directed to appoint an independent valuer to determine the value of the proclaimed and attached goods and to file the report in Court within 30 days.
- 5.Costs of the application to abide the determination of the main suit.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the lease dispute; jurisdiction upheld because the tenancy was not a controlled tenancy under the Landlord and Tenant (Shop, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Restore and Renew Wellness Group Limited v Tradeline Express Company Limited & another (Environment & Land Case E129 of 2023) [2024] KEELC 75 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/75/eng@2024-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.