Hassenye t/a Benos General Shop v Okwayo & another (Environment and Land Appeal E050 of 2021) [2024] KEELC 1248 (KLR)
The bottom line
#A Kenyan court ruled an evicted shop tenant cannot be restored to the premises but can sue for damages, and courts do have jurisdiction over such disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate had jurisdiction over the application and suit
The trial magistrate erred; she had jurisdiction because the Appellant had already been dispossessed at the time of filing, divesting the Business Premises Rent Tribunal of jurisdiction
The court re-evaluated the evidence as a first appeal. The Appellant was forcefully evicted on 5.5.2021 before filing suit on 19.5.2021, and the 2nd Respondent had been placed in the premises. Section 12(1)(e) of Cap 301 gives the Tribunal jurisdiction over persons in occupation at the material time; once ejected, no landlord/tenant relationship subsists to ground the Tribunal's jurisdiction, following Re Hebtulla Properties Ltd.
Whether the prayer for restoration into the demised premises could be granted
Restoration was declined; the Appellant's remedy lies in damages
Although the notices to vacate were defective under section 4 of Cap 301 (not in prescribed form and giving no reason for termination), the Appellant was obliged to respond by filing a reference or indicating non-compliance. He waited until he was ejected. By then a new sub-tenant was in occupation of an operational shop, so an order of restoration would not be efficacious.
Standard of review on a first appeal
The first appellate court must re-evaluate the evidence and reach its own conclusions
Relying on Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123, the court reiterated that an appeal to the first appellate court is by way of retrial: it must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Legal principles established
#- The Business Premises Rent Tribunal's jurisdiction under section 12(1)(e) of Cap 301 extends to persons in occupation at the material time, but once a tenant has been ejected there is no landlord/tenant relationship giving the Tribunal power to entertain the matter
- A landlord must obtain an order for possession; extra-judicial re-entry is impermissible unless the tenant consents to give up possession
Court orders
#- 1.The finding of the trial court that it did not have jurisdiction is set aside and a finding that the court had jurisdiction is made in place of the trial court's finding on jurisdiction
- 2.The prayer for restoration into the demised premises is declined
- 3.The file is remitted back for hearing by a magistrate other than Hon. E. Kigen
- 4.Each party to bear their own costs
- On appeal from
- Magistrates' Court (Eldoret)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court; dispute arising under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassenye t/a Benos General Shop v Okwayo & another (Environment and Land Appeal E050 of 2021) [2024] KEELC 1248 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1248/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.