Rioki Estate Co (1970) Ltd V Kinuthia Njoroge [1977] EKLR | ||
Civil Appeal 9 of 1977 | 26 Jul 1977 |
Abdulla Mustafa, Justin Saulo Musoke, Samuel William Wako Wambuzi
Court of Appeal at Nairobi
Rioki Estate Co (1970) Ltd v Kinuthia Njoroge
Rioki Estate Co (1970) Ltd v Kinuthia Njoroge [1977] eKLR
Rioki Estate Co (1970) Ltd v Kinuthia Njoroge
Court of Appeal for East Africa, Nairobi 26th July 1977
Wambuzi P, Mustafa & Musoke JJ A
Land control - agricultural land - consent to disposal, etc of - failure to obtain consent - Tenant holding over after notice to quit - whether landlord entitled to mesne profits - Land Control Act (cap 302), section 7.
The appellant concluded an agreement in 1972 to lease premises for residential purposes to the respondent. The lease was subject to consent under the Land Control Act, although neither party applied for or obtained such consent within the prescribed three-month period. The respondent entered into possession, paid the rent up to the end of June 1973 and used the premises to entertain tourists. From the beginning of July 1973, the appellant refused to accept any rent and demanded the possession of the premises. The respondent gave up possession in May 1976. The appellant sued the respondent for, inter alia, mesne profits for the period after he had demanded possession. The trial judge found that the agreement was void for want of consent under the Land Control Act, section 6(2). Section 7 of that Act entitled any person who had paid rent in such circumstances to recover it as a debt from the payee. On appeal, on the question of mesne profits,
Held:
Dismissing the appeal, that as the lease was void the respondent’s continued possession of the premises was wrongful from the moment when the appellant had demanded possession, but that it did not necessarily follow that the appellant was entitled to mesne profits in respect of the period of wrongful occupation; the effect of making an award of mesne profits would be to restore to the appellant that which section 7 of the Land Control Act had taken away from him in the guise of rent and the Court would not, in the particular circumstances, make such an award.
Dictum of Briggs JA in Heptulla Bros Ltd v Jambhai Jeshangbhai Thakore [1957] EA 358, 362, EACA, considered.
Dictum of Duffus JA in Chemelil Sisal Estate Ltd v Makongi Ltd [1967] EA 166, 177, EACA, not applied.
Cases referred to in judgment:
Chemelil Sisal Estate Ltd v Makongi Ltd [1967] EA 166, EACA.
Heptulla Bros Ltd v Jambhai Jeshangbhai Thakore [1957] EA 358, EACA.
Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd [1967] EA 287, High Court of Tanzania.
Wambungu v Public Service Commission [1972] EA 296.
Appeal
The Rioki Estate Co (1970) Ltd appealed to the Court of Appeal for East Africa (Civil Appeal No 9 of 1977) against a summary judgment awarded in its favour by Chesoni J in the High Court on 2nd March 1976 (Civil Case No 1200 of 1974) in so far as the judge refused to order the respondent, Kinuthia Njoroge, to pay mesne profits and made no order as to costs. The facts are set out in the judgment of Wambuzi P.
JW Okwach (instructed by Messrs Hamilton Harrison & Mathews) for the Appellant.
S Gautama for the Respondent.
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