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ELCAllowedBPRT Case No. 120 of 2019 (appeal therefrom, memorandum of appeal dated 8th April, 2022)· [2024] KEELC 4806 (KLR)

Chelule & another v Kuria & another (Environment and Land Appeal E001 of 2022) [2024] KEELC 4806 (KLR)

Environment and Land Court
20 June 2024
3,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a judgment of the Environment and Land Court (Mbogo C. G., J) allowing an appeal against the judgment of the Business Premises Rent Tribunal at Nakuru (Hon. Gakuhi Chege, Vice Chair) delivered on 11th March 2022 in BPRT Case No. 120 of 2019. The 1st respondent had moved the tribunal claiming rent arrears of Kshs. 18,000,000 from the appellants (Harmony School), asserting a landlord-tenant relationship. The appellants denied any tenancy, maintaining they purchased the suit plot for Kshs. 500,000 and that it was procedurally transferred to them by the County Government of Narok, with the plot renumbered from Plot No. 9 Block 8 to Plot No. 20 Block 8. The tribunal nonetheless held that the 1st respondent remained the allottee and owner, relying on a letter of allotment, while acknowledging it lacked jurisdiction over ownership disputes. On appeal, the court, applying Selle v Associated Motor Boat Co., re-evaluated the evidence. It held that the tribunal's jurisdiction under Cap 301 is confined to controlled tenancies, the existence of a landlord-tenant relationship being a condition precedent; since ownership was the central dispute, the tribunal exceeded its mandate in pronouncing on ownership, particularly as a letter of allotment confers no title. The proceedings and judgment were declared a nullity and set aside, with the question of ownership left for determination by a court of competent jurisdiction, after which any controlled tenancy could be assessed by the tribunal. The appeal was allowed with costs to the appellants.

Key legal issues

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01

Jurisdiction of the Business Premises Rent Tribunal where ownership of the suit premises is in dispute

Holding

The tribunal lacked jurisdiction to pronounce itself on the issue of ownership; its proceedings and judgment were a nullity and were set aside.

Reasoning

The tribunal's jurisdiction under Cap 301 is limited to controlled tenancies, which presuppose a landlord-tenant relationship. Here the parties fundamentally disputed ownership: the appellants claimed they purchased and obtained transfer of the plot, while the 1st respondent claimed continued ownership. By determining ownership on the strength of an allotment letter, the tribunal exceeded its mandate. Ownership should first be determined by a court seized of that jurisdiction; only then could any controlled tenancy be established.

p. 7
02

Whether a letter of allotment confers title

Holding

A letter of allotment does not confer title; it is a transient right or offer to take property.

Reasoning

Relying on Stephen Mburu & 4 Others v Comat Merchants Ltd, the court held that an allotment letter is not a title document. The tribunal erred in using the allotment letter issued to the 1st respondent to conclude she remained owner while disregarding the appellants' transfer documents. Where both parties claim ownership arising out of an allotment letter, ownership must first be determined by a court with jurisdiction over land disputes.

p. 7
03

Duty of a first appellate court

Holding

The court must subject the whole evidence to a fresh and exhaustive scrutiny and draw its own conclusions, making allowance for not having seen or heard the witnesses.

Reasoning

Citing Selle v Associated Motor Boat Co. Ltd, the judge restated the classic first appellate duty: re-evaluate the evidence and reach independent conclusions while bearing in mind the lack of advantage of seeing and hearing witnesses, and not being bound by the trial forum's findings of fact where they fail to account for material circumstances.

p. 5

Legal principles established

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  • Existence of a landlord and tenant relationship is a precondition to the tribunal's jurisdiction under Cap 301
  • A letter of allotment does not confer title to property

Court orders

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  1. 1.The appeal is hereby allowed
  2. 2.The judgment and decree of the Business Premises Rent Tribunal at Nakuru delivered on 11th March, 2022 is hereby set aside
  3. 3.Costs to the appellants

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 2 (definition of controlled tenancy); Sections 12(4) and 15

Cases cited (28)

  • Moses Wanjala Lukoye versus Bernard Alfred Wekesa Sambu & 3 Others
    [2013] eKLR
  • Khalifa Salim versus Harun Rashid Khator (as administrator of the Estate of the Rashid Khator Salim, deceased) & 2 Others
    [2015] eKLR
  • Trust Bank Limited versus Paramount Universal Bank Limited & 2 Others
    Nairobi [2001] eKLR
  • Lucy Njeri Njoroge versus Kaiyahe Njoroge
    [2015] eKLR
  • Republic versus Business Premises Rent Tribunal & Another, Ex-parte Albert Kigera Karume
    [2015] eKLR
  • Owners of the Motor Vessel "Lillian S" versus Caltex Oil (Kenya) Limited
    [1989] eKLR
  • Re: In the matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Samuel Kamau Macharia versus Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Republic versus Karisa Chengo & 2 Others
    [2017] eKLR
  • Albert Chaurembo Mumba & 7 Others versus Maurice Munyao & 148 Others
    [2019] eKLR
  • Republic versus Chairperson-Business Premises Rent Tribunal at Nairobi & Another Ex-Parte Suraj Housing & Properties Limited & 2 Others
    [2016] eKLR
  • Kenya Co. Registrations versus CKA Realtors Limited & Another
    [2021] eKLR
  • Stephen Ronoh versus Harun Cheboi
    [2006] eKLR
  • Vijay Morjaria versus Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Bruce Joseph Bockle versus Coquerro Limited
    [2014] eKLR
  • Nancy Kahoya Amadiva versus Expert Credit Limited & Another
    [2015] eKLR
  • Kinyanjui Kamau versus George Kamau
    [2015] eKLR
  • Kuria Kiarie & 2 Others versus Sammy Magera
    [2018] eKLR
  • Herbert L. Martin & 2 Others versus Margaret J Kamar & 5 Others
    [2016] eKLR
  • Re Hebatulla Properties Limited
    [1979] KLR 96
  • Silas Yimbo t/a Woodvale Associates versus Eldomart Holdings Limited
    [2008] eKLR
  • Mike Muli versus Justus Mwandikwa Kilonzo & 4 Others
    [2022] eKLR
  • Mansukhalal Jesang Maru versus Frank Wafula
    [2021] eKLR
  • Republic versus Kenya Revenue Authority Ex-parte Althaus Management & Consultancy Limited
    [2015] eKLR
  • Selle & another versus Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Pritam vs. Ratilal and Another
    Nairobi HCCC No. 1499 of 1970 [1972] EA 560
  • Stephen Mburu & 4 Others versus Comat Merchants Ltd
    [2012] eKLR
  • Abdul Hammed Saif –vs- Ali Mohamed Sholan
    (1955), 22 EACA. 270
On appeal from
Business Premises Rent Tribunal at Nakuru
BPRT Case No. 120 of 2019
Jurisdiction invoked
Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 (right of appeal from a tribunal reference)

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, "Chelule & another v Kuria & another (Environment and Land Appeal E001 of 2022) [2024] KEELC 4806 (KLR)", Case Analysis (2024). BPRT Case No. 120 of 2019 (appeal therefrom, memorandum of appeal dated 8th April, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4806/eng@2024-06-20

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