Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter
Parmar v Kebeiro
Court of Appeal, at Nairobi November 28, 1980
Law, Miller & Potter JJA
Civil Appeal No 9 of 1980
Interpretation of the Law - Conflict of judicial opinion – whether interpretation acted upon consistently though wrong in law should be upheld.
Landlord and Tenant - Tenancy - Rent Restriction Act (Cap 296) - whether it applies to dwelling houses erected after January 1, 1965 - whether prior assessment of rent by Rent Tribunal brings the house within the Rent Restriction Act.
The appeal arises from a tenancy arrangement between the appellants as landlords and the respondent as tenants. The respondent occupied the suit premises and had regularly paid rent monthly until the appellants, after due notice purported to terminate the tenancy.
The respondent declined to surrender possession upon which the appellants moved to the High Court seeking final judgement for possession of the flat, mesne profits, interests and costs. The respondent in his defence, argued that he was a protected tenant under the Rent Restriction Act and that the High Court accordingly was in want of jurisdiction to try the suit. The appellants claim was that the Act did not apply to the suit flat having been constructed in 1972 and therefore not being in existence on January 1, 1965. The Respondent pleaded that protection under the Act is not related to the date of construction of the building but to the quantum of rent. The respondent also pointed out that the appellants had in 1976 applied to the Rent Restriction Tribunal at Nairobi for the assessment of the standard rent of all the flats in the block (which application was still pending at the time of the suit) and that this clearly demonstrated that the appellants at that time, considered that their block of flats including that occupied by the respondent constituted a dwelling house falling within the protection of the Rent Restriction Act. The judge dismissed the application with costs. The appellants appealed against this decision. At the court of Appeal, it was argued for the Appellant’s that the decision in Pirbhai Dharshi v Alkasim Khaji supported their view that the Act did not apply to premises erected after 1st day of January 1965.
1. That it is a principle of law that where a Court/Tribunal has interpreted the law in a certain manner, particularly with regard to property rights and the said interpretation has been acted upon for a considerable length of time, then that interpretation should not be departed from unless it is clearly wrong and gives rise to injustice.
2. That the Rent Restriction Act (Cap 296) remained equivocal as to whether or not it applies to dwelling houses erected after January 1, 1965.
3. That the Rent Tribunal had interpreted the Act for the past 15 years as applying to dwelling houses erected after January 1, 1965 and that the same interpretation had been acted upon consistently by the legal profession and by members of property owning community, including the appellants.
4. That to depart from the said interpretation would result in injustice.
1. Pirbhai Dharshi v Alkarim Khaji Civil case 2781 of 1979
2. Parmar v Shah Civil case No 3060 of 1979
3. Rodseth v Shaw  EA 833
4. Jivraj v Davraj  EA 263
Rent Restriction Act (Cap 296) Sections 3, 4 & 35(2)
Mr Khanna for Appellants.
Mr Musyoka - Annan for Respondent.