K.D.Shah V Prakash Vrajlal Malkan & Another  EKLR
|Civil Appeal 22 of 1994
|29 Jul 1994
Riaga Samuel Cornelius Omolo, Akilano Molade Akiwumi, Richard Otieno Kwach
Court of Appeal at Mombasa
K.D.Shah v Prakash Vrajlal Malkan & Chandrakant Vrajlal Malkan
K.D.Shah v Prakash Vrajlal Malkan & another  eKLR
Shah v Malkan & another
Court of Appeal, at Mombasa July 29, 1994
Kwach, Omolo & Akiwumi JJ A
Civil Appeal No 22 of 1994
(Appeal from the orders of the High Court of Kenya at Mombasa (Mr Justice ICC Wambilyangah) dated 17th August, 1983 and 3rd September, 1993 in Civil Case No 406 of 1993)
Civil Practice and Procedure - injunction - discretion to grant or refuse - circumstances in which the Court of Appeal can interfere with the discretion of the High Court judge to grant or refuse an injunction.
Landlord and Tenant - tenant law - notice to terminate a controlled tenancy on the ground that the landlord intends to occupy the land for a period not less than twelve months - landlord changing his mind to sell the premises after being granted occupation - whether notice was fraudulent.
Jurisdiction - Business Premises Tribunal matters - whether the High Court has jurisdiction to issue declaration of matters decided by the tribunal.
The appellant, who was the respondents’ landlord, served the latter with notice to vacate his premises on the ground that he (the landlord) wanted to occupy it for a period of not less than twelve months, for the purposes of conducting a business. The respondent unsuccessfully challenged the notice in the Business Premises Tribunal which upheld the notice and ordered the respondent to vacate. His subsequent appeal to the High Court too was unsuccessful.
One week before they were forced to vacate the suit premises, the respondents brought a fresh suit claiming that the appellant had misrepresented to the tribunal that he wanted to occupy the premises while the real intention was to sell it. He thus argued that because of the disclosed intention to sell the premises, the appellant’s original notice to terminate the tenancy was null and void ab initio and that the appellants had acted mala fides and perjured themselves before the Tribunal.
The respondents therefore sought a declaration that the notice by the defendants was invalid and that the tenancy relationship was still valid.
The High Court, after hearing them on an interlocutory application,
granted the respondent an interim injunction pending adjudication of the claims in his new suit.
1.The decision to grant or refuse an injunction is an exercise of discretion by the judge hearing the matter and the circumstances in which the Court of Appeal will interfere with a judge’s exercise of discretion are now well settled.
2. The Court of Appeal will not interfere with exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted in matters on which it should not have acted or it has failed to take into condisderation matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
3. It is true an appeal was still pending in the High Court but no evidence was received in the appeal from which it could be inferred that the appellants lied to the judge who heard the appeal. If any lying was to be proved, it must be found in the record of the proceedings of the tribunal.
4. The trial judge did not have the record before him. Nor can it be seriously contended that the appellant should have told the High Court that they had changed their mind and intended to sell the property.
5. All that a landlord in these circumstances is required to do is to show that he intends to occupy the premises for his own purposes for a period of not less than twelve months.
6. More than three years had elapsed by the time the notice to sell appeared, In the circumstances, the Court was unable to see that there was a prima facie case with a probability of success.
7. The High Court has jurisdiction to issue a declaration in respect of matters decided by the Business Premises Tribunal.
8. Certiorari which is a remedy available under judicial review may in particular circumstances of the matter before the Court not be applicable because that remedy can only issue where a tribunal has acted without or in excess of its jurisdiction; where it has not observed the Rules of Natural Justice or where there is an error apparrent on the face of the record.
1. Mbogo & another v Shah  EA 93
2. B E A Timber Co v Gill  EA 463
1. Landlord and Tenant (Shops, Hotels & Catering Establishments ) Act (cap 301) sections 4(2); 7(1)(d); 13
2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3, 9
Mr Gautama for the Appellants
Mr Gatonye for the Respondents