East African Power and Lighting Co Ltd v Attorney General

Court of Appeal, Nairobi 16th, 17th October, 22nd November 1978

Sir James Wicks CJ, Wambuzi & Law JJ A

Civil Appeal No 18 of 1978

Landlord and tenant – agreement for lease – entry into possession following agreement - nature of tenancy following entry and payment of rent – monthly tenancy or tenancy at will – essential elements of lease not agreed – Transfer of Property Act (India), section 106.

Where a prospective tenant is permitted to occupy premises in anticipation of the execution of a formal lease (but all the essential elements of the lease have not been agreed) and rent is paid and accepted, in the absence of a contract or local law or usage to the contrary the letting is governed by section 106 of the Transfer of Property Act (India) and is a monthly tenancy which can only be terminated by the giving of the requisite notice.

Rogan-Kamper v Lord Grosvenor (No 2) [1977] Kenya LR 123 applied.

East African Power and Lighting Co Ltd v The Attorney General [1977] Kenya LR 206 reversed.

Per curiam. A tenancy at will can only exist in Kenya as a result of an express agreement to create such a tenancy.

Cases referred to in judgment:

1. Bepari (AA ) v JLR Chaudri [1939] 2 Cal 254.
2. Birsingh v Ketra [1967] EA 741, High Court of Tanzania.
3. Rogan-Kamper v Lord Grosvenor (No 2) [1977] Kenya LR 123, EACA.
4. Singh v Singh [ 1961] IR Patna 350.

Appeal

The East African Power and Lighting Co Ltd appealed to the Court of Appeal (Civil Appeal No 18 of 1978) from the decision of Muli J [1977] Kenya LR 206 in which he had dismissed most of their heads of claim against the Government of Kenya, represented in the proceedings by the Attorney-General. The facts are set out in the judgment of Law JA.

KA Fraser (instructed by Hamilton Harrison & Mathews )for the Appellants.

JF Shields principal State counsel for the Attorney General.

Cur adv vult.