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High CourtPartially AllowedCivil Appeal (from Rent Restrictions Tribunal Civil Case No 629 of 1983)

Anthony Ancento Remedios v Mohamed Said Farar

High Court of Kenya
30 June 1989
SBS.E.O. Bosire
3,095 words in judgment
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The bottom line

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A Kenyan landlord's eviction order was overturned because the Rent Restrictions Tribunal can only evict tenants on the specific grounds listed in the Rent Restriction Act.

What this practically means

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Executive summary

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The appellant, a tenant occupying a ground-floor flat on plot Mombasa/Block XI/520, Tudor, Mombasa, appealed against a decision of the Rent Restrictions Tribunal, Mombasa, which ordered him to deliver vacant possession of the flat to the respondent landlord and pay costs of Shs 1,600 plus disbursements. The plaint had been founded on two grounds: unlawful sub-letting by the original tenant, Eric Stravens, without the landlord's consent, and nuisance caused to adjoining occupiers. The Tribunal instead ordered possession on the ground that the appellant had changed the user of the dwelling flat into business premises by using it for music practices and storing band instruments. On appeal under section 8(2) of the Rent Restriction Act, Bosire J held, first, that the appellant was the respondent's tenant, not a trespasser: the respondent's own estate agents had placed him in possession, rent had been accepted from him, and his occupation for over three years amounted to acquiescence, though the finding of joint tenancy with Eric was unsupported since Eric was not in actual possession. Secondly, the Tribunal erred in ordering possession for change of user: its jurisdiction is specific, confined to the grounds in section 14(1), which do not include change of user; the point was neither pleaded nor in issue nor supported by evidence, and no conviction for illegal or immoral use under s 14(1)(b) was proved. Thirdly, nuisance was unproved, no finding on noise intensity was made, and the reasonableness requirement of s 14(2) was ignored. The appeal was allowed, the order for vacant possession and costs set aside, and costs of both the appeal and the Tribunal suit awarded to the appellant, to be taxed if not agreed.

Key legal issues

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01

Whether the appellant was a tenant or a trespasser

Holding

The appellant was the respondent's tenant; the finding of joint tenancy was not supported since Eric was not in actual possession

Reasoning

Shimoni Enterprises, the respondent's admitted agents, wrote letters showing the appellant rented the premises; rent was accepted from him and he had been in occupation for upwards of three years without eviction, amounting to acquiescence. Eric was not in possession on the date of the suit, so joint tenancy failed.

p. 3
02

Whether the Tribunal could order possession for change of user

Holding

No; change of user is not a ground under section 14(1), and the Tribunal lacks inherent jurisdiction to travel outside the statutory grounds or the issues pleaded

Reasoning

Section 5(1)(f)(i) power is subject to s 14(1), which exhaustively lists grounds for recovery of possession, none being change of user. Change of user was neither pleaded nor in issue nor supported by evidence; s 14(1)(b) required proof of conviction for illegal or immoral use.

p. 4
03

Whether nuisance was established

Holding

It was not; no evidence of noise intensity, no finding by the Tribunal, and reasonableness under s 14(2) was not considered

Reasoning

The claim of nuisance was pleaded but unproved: no evidence on noise intensity and no Tribunal finding. Even if nuisance were proved, s 14(2) obliged the Tribunal to consider whether an order for possession was reasonable, which it failed to do.

p. 4

Legal principles established

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  • The Rent Restriction Tribunal has no inherent jurisdiction and may order recovery of possession only on grounds set out under section 14(1) of the Act
  • Possession under the Act means actual possession or occupation, not possession in a legal sense
  • Issues framed, not pleadings, guide the parties on the evidence to be adduced; a court should not decide matters in which there is no dispute
  • Under s 14(2) of the Act, no order for possession shall be made unless the Tribunal considers it reasonable

Court orders

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  1. 1.Appeal allowed
  2. 2.Order for vacant possession and costs before the Tribunal set aside
  3. 3.Costs of the appeal and the suit before the Tribunal awarded to the appellant, to be taxed if not agreed
On appeal from
Rent Restrictions Tribunal, Mombasa
Civil Case No 629 of 1983
Jurisdiction invoked
Section 8(2) of the Rent Restriction Act (appeal on points of law and mixed law and fact, rent exceeding Shs 200)

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, "Anthony Ancento Remedios v Mohamed Said Farar", Case Analysis (1989). Civil Appeal (from Rent Restrictions Tribunal Civil Case No 629 of 1983). Source:

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