Professional Documents
Culture Documents
SCHOOL OF LAW
MODULE 1
GROUP 1
INSTRUCTOR: KOKI MBULU
Landlord and Tenant (Shops, Hotels and Catering establishments) Act Chapter 301 of The Laws of Kenya.
2.0 Establishment
The Business Premises Rent Tribunal is established by Section 11 of the Landlord and Tenant
(shops, hotels and catering establishments) Act of 1965, Chapter 301 of The Laws of Kenya with
the primary prerogative of adjudicating disputes between landlords and tenants in controlled
tenancies.
Section 2(1) of the Act4 defines controlled tenancy to include the tenancy of a shop, hotel or
catering establishment which has not or has been reduced to writing, is for a period not
exceeding five years and contains provisions for termination and that it excludes tenancies to
which the government, community or local authority is a party, whether as landlord or tenant.
3.0 Composition:
The Tribunal comprises person or persons appointed by the Cabinet Secretary (an equivalent of
a Minister under the Act) 5and is headed by a chairperson who must be an advocate of the High
Court of Kenya of not less than five years standing. It is however notable that those
appointments shall take into consideration the regional, ethnic, religious and cultural diversity
Page 1 of 5
j)
k)
l)
m)
n)
o)
6The
Page 2 of 5
The Chief Justice can however, make other rules prescribing the procedure, fees payable or
costs in any proceedings in the High Court or any other court under the Act.11
9n1
(Section 6)
Ibid.
11
n1 (Section 16(2))
12 n1(Section 15(1))
10
Page 3 of 5
Irrational
Unproportional.
Procedurally unfair.
Made in bad faith.
Unreasonable.
Took into consideration irrelevant factors.
In Omar Mohamed Abdalla v Shaffa Khamis Shafi15 the appellant appealed the decision of the
tribunal on grounds that its determination to grant vacation orders was bad in law and
unreasonable since the vacation notice gave the tenant less than thirty days; that there was no
evidence adduced on claims of non-payment of rent by the tenant and that such order was
based on non-existent fact or evidence.
The High Court upheld the decision of the tribunal and indicated that the tribunals
determination was not only lawful but also reasonable since the relationship between the
landlord and tenant was commercial in nature and that unless otherwise agreed, the rent was
payable on monthly basis and that there was thus a sufficient ground to seek orders for vacation
of property.
In R v Chairperson Business Premises Rent Tribunal Ex-parte Samuel Kariuki and others,16 the
applicant sought orders certiorari quashing the decision of the tribunal ordering levying of
distress with regard to premises known as Basement floor for failure to pay rent. The applicant
argued the decision of the tribunal was against the rules of natural justice as the matter was
heard and determined without them being afforded an opportunity to respond to the
substantive matter. Justice Weldon Korir said thus:
The right to a fair hearing is a cardinal principle of the rules of natural justice. A
party cannot be condemned unheard. The 2nd interested party is the owner of the
premises in question and the respondent was wrong in ordering the ex-parte
applicants to pay rent to the 1 st interested party without hearing the 2 nd interested
13
Ibid.
14Ibid,
subsection 2
[2006] eKLR.
16 J.R 165/2011 [2013]eKLR
15
Page 4 of 5
It was held that the tribunal acted in bad faith and unreasonably in giving orders against the
applicants without affording them a hearing and that its(tribunals) total disregard of the other
proceedings on the same matter before it was not only careless but also reckless.
It is notable however, that the Courts are always reluctant to give stay orders or any other
orders prayed for by applicants or even the respondents in circumstances where parties try to
circumvent the entire reference process. In Augustus Muli t/a Fun & Joy Co. & Another v
Chemusian Co Ltd & Another, a Notice of Motion Application was filed by the applicant under
Order 41 Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for the
order that there be a stay of execution of orders made by the Business Premises Rent Tribunal
pending the hearing and determination of the appeal. The applicants counsel told the Court
that the Business Premises Rent Tribunal had dismissed the appellants application seeking
injunction to restrain the landlord from proceeding with the distress for rent against him and
that if the stay was not granted, the applicant would be exposed to all manner of exploitation,
harassment and even eviction.
The Court dismissed the application. The Appellants conduct of going to court for protective
orders, losing the prayers; then going to the tribunal for the same orders sounded mischievous.
It was held that giving the stay would amount to travesty of justice.
In Hannah Wanjiku t/a Guthera Provision Store v Jowell T. Kamano17 the Respondent, a landlord
gave a notice under Sec 4(2) of Cap 301 to the applicant, his tenant, for the termination of the
tenancy on grounds that he wanted to occupy the premises to operate a hardware business. The
appellant opposed the notice and filed a reference to the Business Premises Rent Tribunal. This
was dismissed by the Chairman. Aggrieved by the decision of the chairman, the appellant filed
an appeal on grounds that the tribunal erred in law and that its determination was
unreasonable.
It was held that the notice of termination contained all the ingredients required under the act
and it was clear the tenant knew exactly why the tenancy was terminated and that the tribunal
did not err in law and neither was its determination unreasonable.
17
[2004] eKLR.
Page 5 of 5