Auto Engineering Ltd v M Gonella & Co Ltd
High Court, Nairobi 22nd September, 30th October11th, 13th, 30th November 1978
Hancox & Sachdeva JJ
Civil Appeal Nos 70 of 1976 and 51of 1977
Landlord and tenant – notice to quit – landlord giving notice – notice given by landlord’s advocates – whether given by landlord – Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301), section 2.
Landlord and tenant – notice to quit – form of notice – language differing from statutory wording – adequacy of language – no misdescription of tenant’s rights.
Landlord and tenant - controlled tenancy – right to terminate – intention to construct or reconstruct – not sole intention – effect of need for planning permission on intention – Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act (cap 301), section 7(1)(f).
Landlord and tenant – controlled tenancy – right to terminate – intention of landlord to occupy premises – occupier to be company controlled by landlord – company not yet formed.
Landlord and tenant – controlled tenancy – right to terminate – burden of proof on landlord – proof of intention – burden comparable to burden on landlord in England opposing grant of new tenancy.
Notwithstanding the strict definition of “landlord” in section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, a notice to quit (or a tenancy notice) under the Act is not invalidated merely because it has been given by the landlord’s advocates rather than by himself.
Harmond Properties v Gajdzis  1 WLR 1858, CA, applied.
Provided that the words of a notice to quit do not purport to curtail any of the tenant’s rights, they do not necessarily need to repeat the words of the statute; but the language used must be adequate to convey to the receiving party what the landlord intends to do and why he wants vacant possession.
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd  AC 850, HL and Lall v Jepee Investments  EA 512 distinguished.
A notice to quit, which purports to be based on the landlord’s intention to construct or reconstruct the premises in accordance with section 7(1)(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, is not invalidated by the landlord’s failure to show that the intention to construct or reconstruct is his only intention, and the need for planning permission is not an insurmountable obstacle to establishing the landlord’s intention.
Fisher v Taylors Furnishing Stores Ltd  2 All ER 78, CA, explained. A notice to quit may properly be given even though it is intended that the premises which are the subject of the notice are to be occupied by a company not yet formed which will be under control of the landlord. Fleet Electrics Ltd v Jacey Investments Ltd  3 All ER 99, CA, applied.
There is no distinction, so far as the burden of proof is concerned, between a landlord serving a notice to quit under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and a landlord in England opposing the grant of a new tenancy under the English Landlord and Tenant Act 1954; in each instance the burden of proof is placed on the landlord to establish his intention.
Cases referred to in judgment:
Abeid v Badbes  EA 598.
Balbir v Panesar  EA 94.
Betty’s Cafes Ltd v Phillips Furnishing Stores Ltd  2 WLR 513,  1 All ER 607, HL.
Bewlay (Tobacconists) Ltd v British Bata Shoe Co Ltd  1 WLR 45,  3 All ER 652, CA.
Cunliffe v Goodman  2 KB 237,  1 All ER 720, CA.
Fisher v Taylors Furnishing Stores Ltd  2 QB 78,  2 WLR 985,  2 All ER 78, CA.
Fleet Electrics Ltd v Jacey Investments Ltd  1 WLR 1027,  3 All ER 99, CA.
Gregson v Cyril Lord Ltd  1 WLR 41,  3 All ER 1007, CA.
Harmond Properties Ltd v Gajdzis  1 WLR 1858,  3 All ER 263, CA.
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd  AC 850,  3 WLR 287,  2 All ER 871, HL.
Kangari v Station Makutano Bar and Restaurant High Court Civil Appeal Nos 20 to 22 of 1975, Platt J.
Karatina Garments Ltd v Nyanarua  Kenya LR 94.
Lall v Jeypee Investments Ltd  EA 512.
London County Council v Farren  1 WLR 1297,  3 All ER 401, CA.
London County Council v Vitamins Ltd  2 QB 218,  2 WLR 925,  2 All ER 229, CA.
Portal Motors Ltd v HFCK High Court Civil Appeals No 81 to 86 of 1975, Madan J.
Price v West London Investment Building Society  1 WLR 616,  2 All ER 318, CA.
Waljee v Rose  Kenya LR 25, EACA.
The two appeals by Auto Engineering Ltd (the tenant) to the High Court (Civil Appeal Nos 70 of 1976 and 51of 1977) from a decision of the Business Premises Rent Tribunal, Nairobi, on 13th April 1977 (Tribunal Case No 361 of 1975) were consolidated and heard together. The respondent to the appeals was M Gonella & Co Ltd (the landlord). The facts are set out in the judgment of the court.
AAK Esmail (instructed by Esmail & Esmail) for the Tenant.
SC Gautama and Miss HN Kara (instructed by Waruhiu & Muite) for the Appellant.
Cur adv vult.