Abdulla Mustafa, Harold Grant Platt, Samuel William Wako Wambuzi
A.W.Rogan-Kamper v Robert Grosvenor  eKLR
Rogan–Kamper v Lord Grosvenor (No 2)
Court of Appeal for East Africa, Nairobi 7th July 1977
Wambuzi P, Mustafa JA & Platt J
Landlord and tenant - agreement for lease - entry into possession following agreement - nature of tenancy following entry and payment of rent - monthly tenancy or tenancy at will - terms of draft, unexecuted lease inapplicable - Transfer of Property Act (India), section 106.
Landlord and tenant - tenancy - registration - evidence of tenancy – unregistered tenancy not validated by Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2(3)
The tenant entered in to an agreement with the landlord in 1969 which was evidenced by a letter sent to the tenant and signed by him. The letter stated that the parties had agreed to enter into a lease for five years and one month for certain premises at a specified monthly rent. The tenant was to occupy the premises from 1st November 1969 and the landlord would arrange for a draft lease incorporating the agreed terms to be drawn up for the tenant’s approval. The tenant duly entered into possession; and it was agreed that the premises fell within the ambit of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. On 15th November, a draft lease was submitted to the tenant; despite several reminders, the tenant neither approved nor executed the lease. The tenant paid the rent in full up to 30th April 1970 when he purported to surrender half the premises to the landlord; thereafter he paid or tendered only one half of the agreed rent. In 1971 the landlord, referring to a term in the draft lease entitling him to re-enter the premises for nonpayment of rent, gave the tenant notice to quit and instituted proceedings for ejectment. He did not, however, follow the procedure prescribed by the Act for terminating controlled tenancies.
That on its proper construction the 1969 agreement was a contract for a lease and, as the only right which flowed from such a contract was the right to seek an order for specific performance, the landlord could not give notice to terminate in accordance with the terms of draft lease; the entry into possession and the and the payment of rent by the tenant together with the acceptance of rent by the landlord created a tenancy which was either, (per Wambuzi P and Mustafa JA) a monthly tenancy terminable by virtue of the Transfer of Property Act (India), section 106, by fifteen days notice or (Per Platt J) a tenancy at will in respect of which no formal notice was necessary; however, as the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act applied to the premises and its procedure had not been followed, the tenancy still substituted.
Ariff v Jadunath Majumdar (1930) 58 Cal 1235, PC, Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd  EA 926, EACA, applied.
Ashmore Benson, Pease & Co Ltd v A V Dawson Ltd  2 All ER 856 considered.
Grosvenor v Rogan-Kamper  EA 446, EACA, explained. Walsh v Lonsdale (1882) 21 Ch D 9, CA, not applied.
Cases referred to in the judgment:
Abdul Rehman v RH Gudka  EA 4, EACA.
Ariff v Jadunath Majumdar (1930) 58 Cal 1235, PC.
Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd  2 All ER 828,  2 All ER 856,  2 Lloyd’s Rep 21, CA.
Clarke (Kenneth Thomas) v Sondhi Ltd  EA 107, EACA.
Grosvenor v Rogan-Kamper  E A 446, EACA.
Jagat Singh Bains v Ishmael Mohamed Chogley (1949) 16 EACA 27.
Ramjoo Mohamed v Haridass Mullock (1925) 52 ILR Cal 701.
Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd  E A 926, EACA.
Walsh v Lonsdale (1882) 21 Ch D 9; 52 LJ Ch 2; 46T L 858, CA.
In June 1971, Lord Robert Grosvenor, the Landlord, instituted proceedings for ejectment of Dr AW Rogan-Kamper, the tenant, for arrears of rent and mesne profits in the High Court (Civil Case No 786 of 1971). Chanan Singh J dismissed the action with costs. The landlord appealed to the Court of Appeal for East Africa which remitted the case back to the same judge (reported sub nom Lord Grosvenor v Rogan-Kamper  EA 446). On 31st July 1975, Chanan Singh J gave judgment for the landlord and the tenant appealed to the Court of Appeal for East Africa (Civil Appeal No 33 of 1976).
JM Nazareth QC and MR Pabary (instructed by MR Pabary) for the Appellant.
P Le pelley and KA Fraser (instructed by Messrs Hamilton Harrison & Mathews) for the Respondent.