Bahajj v Said Bin Seif Properties Ltd (Environment and Land Appeal E015 of 2023) [2024] KEELC 139 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the tenancy termination notice
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
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.
Whether the preliminary objection was properly dismissed
The Vice Chairperson did not err; the grounds raised were issues of fact, not pure points of law
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.
Whether the Vice Chairperson considered the appellant's evidence and submissions
He did consider the testimonies and submissions and properly applied the facts and the law
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.