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ELCDismissedAppeal from Mombasa BPRTC No. E256 of 2022· [2024] KEELC 139 (KLR)

Bahajj v Said Bin Seif Properties Ltd (Environment and Land Appeal E015 of 2023) [2024] KEELC 139 (KLR)

High Court of Kenya at Mombasa
25 January 2024
1,720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Mombasa confirmed a landlord's termination notice was valid, meaning tenants under Cap 301 must treat the two-month notice rule strictly.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Mombasa against the judgment and decree of the Vice Chairperson of the Mombasa Business Premises Rent Tribunal (Hon C. Mugambi) in BPRTC No. E256 of 2022, delivered on 31st July 2023, upholding the respondent landlord's termination notice dated 16th November 2022 requiring the appellant tenant to vacate Shop No. 7 on title 4/R Section XXXIX for demolition or reconstruction following a fire at Mackinnon market, and for breach of obligations by alleged subletting without consent. The appellant advanced nine grounds, including that the notice was defective as it lapsed mid-month, that there was no demolition licence or approved plans from the County Government of Mombasa, that the preliminary objection was wrongly dismissed, and that the Tribunal improperly ordered the OCS Makupa Police Station to enforce the order. Ground 7 on costs and interest was withdrawn. The court reiterated its duty on a first appeal to re-evaluate the evidence, applied Selle v Associated Motor Boat Co and the Mukisa Biscuits definition of a preliminary objection, and held that the grounds raised were factual, not pure points of law; that the notice was valid since Cap 301 required only more than two months' notice; and that the Vice Chairperson had properly considered the evidence. The appeal was dismissed with costs on 25th January 2024.

Key legal issues

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01

Validity of the tenancy termination notice

Holding

The notice was valid; nothing in Cap 301 requires the notice to expire at the end of a calendar month, and the 80-day interval exceeded the required two months

Reasoning

The appellant argued the notice lapsed mid-month contrary to the monthly tenancy cycle and that the 60-day service rule was breached. The Tribunal had held the drafters of Cap 301 required only more than two months' notice. The court found the notice served on 21st November 2022 to take effect on 10th February 2023 was an 80-day interval and the notice was not defective.

p. 3
02

Whether the preliminary objection was properly dismissed

Holding

The Vice Chairperson did not err; the grounds raised were issues of fact, not pure points of law

Reasoning

Applying the Mukisa Biscuits definition, the court held that arguments that the respondent continued receiving rent, that the notice was defective, and that affidavits were shortcuts were factual matters requiring ascertainment, not pure points of law, so the preliminary objection was properly dismissed.

p. 4
03

Whether the Vice Chairperson considered the appellant's evidence and submissions

Holding

He did consider the testimonies and submissions and properly applied the facts and the law

Reasoning

The court reviewed the Tribunal judgment and found it referred to the appellant, DW2, their statements and testimony. The appellant's challenge that expert reports were preferred over his testimony did not demonstrate error; the court concluded the Tribunal reached a just conclusion and the appeal lacked merit.

p. 4

Legal principles established

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  • On a first appeal the court reviews and re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses
  • A preliminary objection must be a pure point of law and cannot be raised where facts have to be ascertained
  • A tenancy termination notice under Cap 301 need not be given to take effect on the actual date the tenancy begins; the statute only requires more than two months' notice

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301

Cases cited (3)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors
    (1969) EA 696
  • Municipal Council of Thika v Elizabeth Wambui Kamicha
    Nyeri Civil Appeal No. 306 of 2010
On appeal from
Mombasa Business Premises Rent Tribunal
BPRTC No. E256 of 2022
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under Cap 301 (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act)

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, "Bahajj v Said Bin Seif Properties Ltd (Environment and Land Appeal E015 of 2023) [2024] KEELC 139 (KLR)", Case Analysis (2024). Appeal from Mombasa BPRTC No. E256 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/139/eng@2024-01-25

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