JANE MURINGI WANGUI & another v HOMEPLUS REALTORS LIMITED & another
The bottom line
#Kenya's High Court overturned a tribunal eviction, ruling the landlord won unfairly because the tenants' earlier challenge was never heard before possession was ordered.
What this practically means
#Executive summary
#Key legal issues
#Right to a fair hearing before the Tribunal
The Tribunal heard and determined the landlord's reference filed six months later without hearing the appellants' earlier reference, denying the appellants a fair hearing under Article 50(1)
The court found as a fact that the Tribunal acknowledged the tenants' reference dated 31/08/2022 opposing the termination notice but did not hear or determine it. Instead it heard the landlord's reference of 17/03/2023 and granted vacant possession at what was effectively an interlocutory stage. Determining the validity of the notice without hearing the opposing reference breached Article 50(1) and the rules of natural justice.
Compliance with Section 4(5) of Cap 301
The Tribunal erred in finding the reference contravened Section 4(5); the effective date in the notice extended beyond one month and Section 6(1) permits a reference notwithstanding non-compliance
The notice was issued on 21/06/2022 to take effect on 1/09/2022 and the reference was filed on 31/08/2022, before the effective date. The Vice-Chairman failed to observe that the effective date had been substituted beyond the one-month period. Further, Section 6(1) empowers the Tribunal to permit a reference despite non-compliance with section 4(5), and no objection was raised by the respondents.
Raising a new issue on appeal (unauthorized signatory of the notice)
The ground that the notice was issued by an unauthorized person could not be entertained as it was not raised before the Tribunal
The issue of the Managing Director signing the notice was never raised before or during the hearing, no notice of preliminary objection was filed, and the Tribunal's judgment did not address it. The court, guided by precedent restricting appellate courts to issues canvassed below, declined to consider the ground.
Unilateral site inspection
The ground was not canvassed before the Tribunal and could not be raised on appeal; the tenant also abandoned the issue by failing to file comments within the ordered timeline
The Tribunal ordered the site visit and gave parties an opportunity to comment on the report by 2/06/2023. The tenants filed comments late on 6/06/2023 and adduced no evidence of bias. Having failed to canvass the issue at first instance, the appellants could not raise it on appeal.
Vacant possession and abandonment
The Tribunal erred in granting vacant possession on the basis of abandonment, since the eviction letter of 12/10/2023 showed the appellants were still in possession
The appeal was filed on 4/07/2023 and the eviction letter issued on 12/10/2023; an eviction letter could not issue to non-tenants. This demonstrated continued possession and an existing landlord-tenant relationship, contradicting the finding of abandonment on which vacant possession was granted.
Proof of rent arrears
The Tribunal erred in upholding the termination notice without proof of rent arrears, as the landlord did not refute evidence that the 2nd appellant paid the arrears and took over the tenancy
Although the landlord had obtained distress-for-rent orders in Magistrate's Case No E1892 of 2021, there was no evidence those orders were still subsisting, and the landlord did not deny receiving rent from the 2nd appellant who took over the tenancy. The finding that arrears were owing was therefore unsupported.
Legal principles established
#- A first appeal is on both facts and law; the first appellate court must re-examine and re-evaluate the evidence and draw its own conclusions
- A party may not raise a new issue on appeal that was not canvassed before the trial court
- Under Section 6(1) of Cap 301, a tenancy notice is of no effect pending determination of a reference, and a Tribunal may permit a reference notwithstanding non-compliance with section 4(5)
- A tenant's reference filed before the effective date of a termination notice suspends the notice until determination
- Costs follow the event
Court orders
#- 1.The Ruling/Judgment of Honorable Andrew Muma-Vice-Chairman-Business Premises and Rent Tribunal dated 9/06/2023 and all consequential orders be set aside and the respondents' reference dated 17/03/2023 be dismissed
- 2.The appellants' reference dated 31/08/2022 to be heard by the Business Premises Rent Tribunal
- 3.Appellants are granted costs of the Appeal
- On appeal from
- Business Premises and Rent Tribunal
- BPRT E295/2023 (and tenants' reference BPRT E778/2022)
- Jurisdiction invoked
- First appeal from the Business Premises and Rent Tribunal 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, "JANE MURINGI WANGUI & another v HOMEPLUS REALTORS LIMITED & another", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5124/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.