Duncan Nderitu & 2 others t/a Trustees of African Club v John Harun
High Court, at Nairobi May 17, 1991
Civil Case No 3098 of 1990
Civil Practice and Procedure – summary judgment – against a tenant – whether a landlord may apply for summary judgment to recover rent from a tenant whose term has expired – order XXXV rule 1(1)(b) of the Civil Procedure Rules.
Civil Practice and Procedure – summary judgment - application for - where an applicant has set out facts to warrant grant of his prayers – the respondent has the onus of showing that his defence raises triable issues.
Civil Practice and Procedure – applications – where an application is made in chambers instead of court – whether such an application is fatal – power of the court under order L rule 11 of the Civil Procedure Rules.
Civil Practice and Procedure – pleadings – plaint – where allegations of fact are made in the plaint – whether such allegations are deemed to be admitted unless traversed in the defence – where the defence is a general denial – whether a general denial constitutes a sufficient traverse – provision of order VI rule 9(1) and (3) of Civil Procedure Rules.
Land – leases – unregistered leases under the Transfer of Property Act of India 1882 – effect of – provisions of section 106 and 116 of the Transfer of Property Act of India.
Land – land rates – rateable owner – definition of a rateable owner – provisions of sections 2 of the Rating Act cap 267 and section 7 of the Valuation for Rating Act cap 266.
Land – land rates – payment of rates – procedure where the rateable owner fails to pay rates after publications – circumstances under which a tenant can pay rates – whether payment of rates can create a tenancy.
Societies – deregistration of a society – where a society has allegedly been deregistered – where a receiver has not been appointed by the Minister – whether the registered trustees have a legal duty to deal with the property of the society.
The applicants applied for summary judgment against the respondent seeking for orders that the respondent hands over the premises known as LR 209/930 Monrovia Street, an injunction to restrain the respondent from interfering with the applicants enjoyment of the suit premises, an order that the respondent vacates the suit premises, damages and costs.
The applicants, trustees of a registered society stated that they had leased out premises to the respondent for a period of 3 years but a lease was not prepared and signed. The respondent failed to pay rent and the applicants demanded his vacation of the premises which he did but later returned to the premises. Furthermore, the respondent without the applicant’s knowledge purported to make payments of land rates to Nairobi City Commission.
The respondent denied that society was registered under the Societies Act. He acknowledged being let the premises but claimed that they were let the premises that were not in a habitable condition. He denied also having released the premises to the applicants and had paid all the rents and rates necessary.
1. Under order XXXV rule 1(1)(b) of the Civil Procedure Rules a landlord is at liberty to apply for summary judgment from a tenant whose term has expired.
2. The fact that the application is made in chambers instead of court is not fatal for order L rule 11 of the Civil Procedure Rules recognises that such an error can be made and empowers the Court to either adjourn it or hear it in chambers.
3. In an application for summary judgment, if the applicant has set out in his affidavit(s) in support of his motion and exhibits facts which are properly true and sufficient to warrant the granting of his prayer for summary judgment the respondent must discharge the onus on him if showing his defence(s) raises triable or bona fide issues.
4. Under section 106 and 116 of the Transfer of Property Act of India, a lease of business premises is in the absence of a contract or local usage deemed to be a lease from month to month terminable by a 15 days notice. If the lessee holds over after determination of the lease and lessor accepts rent or asserts to lesssee’s possession of the business, the lease is assumed to be a month to month tenant.
5. Allegations of fact made by the plaintiffs in the plaint are deemed to be admitted by the respondent unless he traverses them in his defence or affidavit and a general denial is not sufficient traverse under order VI rule 9(1) and (3) of the Civil Procedure Rules.
6. Under the Rating Act – cap 267 section 2 makes the rateable owner as the person liable to pay the rates. A rateable owner, under section 7 of the Valuation for Rating Act, cap 266 includes the owner of registered freehold or tenant for life in possession or in reversion, it also includes categories of lessees of property under a registered lease for periods ranging from 21 years to 25 years.
7. Before the occupier can be entitled to be served with a notice to pay the rent directly to the rating authority or indeed to pay the rates, he must be a tenant of the lessor. The mere payment for such rates does not create a tenancy unless the lessor consents.
8. Under section 15, 16 and 17 of the Rating Act, if the rateable owner fails to pay the rates after 30 days of publication, he can be given a notice of 14 days to pay and in default enforcement proceedings can be commenced against him. But if the rateable owner fails to pay the Rating Authority can serve the tenant with a notice to pay the rent direct to the Rating Authority until the arrears are duly paid.
9. As provided in section 38 of the Societies Act cap 108 after deregistration of a society the Minister responsible has a discretion either to appoint a receiver of the society or vest the properties of the society in the receiver; where there is no evidence that a receiver has been appointed and the suit premises vested in the receiver, the registered trustees of the immoveable property have a legal duty to recover the property and account it to the receiver when duly appointed.
1. Hola G Holdings v Lavarini’s Restaurant Ltd & another Civil Appeal Nos 48 and 49 of 1980
2. Bachelor’s Bakery Ltd v Westlands Securities  KLR 366
3. Gohil v Wamai  KLR 489
Blundell, L A; Wellings, V G (1970) Woodfall Landlord and Tenant, London: Sweet & Maxwell 27th Edn Vol I p18 - 19 para 29 - 30
1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 9(1), (3); 2(1), (2); order XXXV rule 1(1); (b); order XXXIX rules 2(1); (2); order L rule 11
2. Civil Procedure Act (cap 21) section 3A
3. Societies Act (cap 108) section 38
4. Government Lands Act (cap 280)
5. Registration of Titles Act (cap 281)
6. Rating Act (cap 267) sections 2, 15, 16, 17, 18(1); 20(1)
7. Indian Transfer of Property Act, 1882 sections 106, 107, 108(c), (g); 111(g); (h); 112; 116
8. Valuation for Rating Act (cap 266) section 7