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ELCPartially AllowedKisii ELC Appeal (from Kisii BPRT Case Nos. 043-050 of 2013)· [2024] KEELC 5790 (KLR)

Nyaboke & another v Ondieki (Environment and Land Appeal E011 of 2023) [2024] KEELC 5790 (KLR)

Environment and Land Court
30 July 2024
MSMunyao Sila
6,127 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that someone who denies a landlord's title and pays no rent is a trespasser, not a tenant, so the Rent Tribunal had no jurisdiction.

What this practically means

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Executive summary

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The respondents purchased a one-third share of leasehold property on Kisii Municipality/Block II/66 comprising five shops, and issued a tenancy termination notice under Section 4(2) of Cap 301. The 1st appellant, an occupant, filed a reference to the Business Premises Rent Tribunal denying that the respondent was her landlord, asserting she paid rent to Sospeter Moindi and later his son Elijah (2nd appellant). The Tribunal held a tenancy relationship existed, upheld the notice, yet ordered continued payment of rent rather than vacant possession. Both sides appealed: the appellants denied any tenancy; the respondent cross-appealed seeking an eviction order. Munyao Sila J examined the definitions of landlord, tenant and tenancy in Adkins, Black's Law Dictionary, Halsbury's Laws and the Land Act, and held that a tenancy is contractual, requiring consensus, exclusive possession, a term and rent. The 1st appellant denied the respondent's title, never paid her rent, and claimed to hold under a third party; she was therefore a trespasser, not a tenant. Following Pritam v Ratilal, existence of a controlled tenancy is a condition precedent to the Tribunal's jurisdiction, so the Tribunal should have declined jurisdiction. The court set aside the Tribunal's orders and allowed the appeal on that basis, declined the cross-appeal, gave no costs of the appeal, awarded the respondent Tribunal costs against the 1st appellant, and left the deposited rents for separate litigation.

Key legal issues

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01

Whether a tenancy relationship existed between the 1st appellant and the respondent

Holding

No tenancy existed, express or implied; the 1st appellant was a trespasser

Reasoning

A tenancy is contractual, requiring consensus, exclusive possession, a term and rent. The 1st appellant denied the respondent's title, paid no rent to her, and claimed to hold under a third party. Possession hostile to the registered owner, without consent or payment of rent, cannot found even an implied periodic tenancy or tenancy at will. The proper characterization was trespasser.

02

Whether the Tribunal had jurisdiction over the reference

Holding

The Tribunal lacked jurisdiction because existence of a tenancy is a prerequisite to its jurisdiction under Cap 301

Reasoning

Following Pritam v Ratilal, the existence of a controlled tenancy is a condition precedent to the Tribunal exercising jurisdiction. Having found facts inconsistent with any tenancy, the Tribunal ought to have held it had no jurisdiction and ended the reference, leaving parties to pursue alternative remedies such as a suit for eviction.

p. 10
03

Whether the Tribunal erred in its internal contradiction between upholding the notice and continuing the tenancy

Holding

The Tribunal contradicted itself, but nothing turns on it given the finding of no tenancy

Reasoning

The Tribunal upheld the landlord's notice as validly issued yet declined to order vacant possession, instead directing continued payment of rent and negotiation. The court agreed with the respondent's cross-appeal that this was contradictory, though the primary defect remained the absence of any tenancy relationship.

p. 10

Legal principles established

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  • An occupant who denounces the title of the property owner and insists on remaining in possession without paying rent cannot be regarded a tenant but a trespasser
  • A tenancy is a contractual relationship requiring consensus: mutual recognition as landlord and tenant, exclusive possession, a term and rent; it cannot be imposed on an unwilling occupant
  • Existence of a controlled tenancy is a condition precedent to the Tribunal's jurisdiction; if the Tribunal finds no tenancy it must down its tools

Court orders

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  1. 1.Appeal allowed to the extent that the court holds there was no tenancy relationship between the 1st appellant and the respondent
  2. 2.Orders of the Tribunal set aside with a finding that there was no tenancy relationship and parties ought to pursue their remedies elsewhere
  3. 3.Cross-appeal by the respondent not allowed
  4. 4.No orders as to the costs of the appeal
  5. 5.Respondent awarded costs of the proceedings before the Tribunal as against the 1st appellant
  6. 6.No orders made on the money deposited in the joint interest earning account; that to be resolved in separate litigation

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Sections 2, 4(2), 6, 12(1)(a)
  • Land Act, Act No. 3 of 2012Section 57 (periodic leases); definitions of lessee and lessor

Cases cited (2)

  • Pritam v Ratilal & Another
    (1972) EA 560
  • Chalcots Developments Limited v De Gray
    (1967) 2 All ER 888
On appeal from
Business Premises Rent Tribunal (Kisii)
Kisii BPRT Case Numbers 043-050 of 2013
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyaboke & another v Ondieki (Environment and Land Appeal E011 of 2023) [2024] KEELC 5790 (KLR)", Case Analysis (2024). Kisii ELC Appeal (from Kisii BPRT Case Nos. 043-050 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5790/eng@2024-07-30

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