Case Metadata |
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| Case Number: | Civil Appeal 203 of 1994 |
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| Parties: | Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited |
| Date Delivered: | 24 Jul 1995 |
| Case Class: | Civil |
| Court: | Court of Appeal at Mombasa |
| Case Action: | Judgment |
| Judge(s): | Riaga Samuel Cornelius Omolo, Richard Otieno Kwach, John Mwangi Gachuhi |
| Citation: | Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR |
| Case History: | (Appeal from the judgment of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 21st September, 1993 IN H.C.C.C APPEAL NO. 111 OF 1992) |
| Court Division: | Civil |
| County: | Mombasa |
| Case Summary: | Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited Court of Appeal, at Mombasa July 24, 1995 Gachuhi, Kwach & Omolo JJ A Civil Appeal No 203 of 1994 (Appeal from the judgment of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 21st September, 1993 in HCC Appeal No 111 of 1992) Landlord/Tenant Law - controlled tenancy - procedure for termination-section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act. Landlord/Tenant Law - controlled tenancy - landlord giving notice of termination of controlled tenancy contrary to provisions of section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act-whether tenant is under duty to react to the invalid notice. Landlord/Tenant Law - controlled tenancy - landlord giving notice of termination of controlled tenancy contrary to provisions of section [4]1 Landlord & Tenant (Shops, Hotels & Catering Establishments) Act -whether court has jurisdiction to grant summary judgment on an application grounded on the invalid notice. The respondent after giving the appellant notice of termination of tenancy successfully sued the latter for vacant possession in the magistrate’s court. The appellant appealed to the superior court against that decision and its appeal was dismissed, giving rise to the present appeal. Both the magistrate’s court and the High Court made concurrent findings that the appellant was a protected tenant with a controlled tenancy under the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (Cap 301). The appellant in its defence before the magistrate challenged the court’s jurisdiction but the trial magistrate though that the notice of termination served on the appellant by the respondent was both valid and effective and, on that basis, the magistrate thought he had jurisdiction to make the order for possession, which he did. The judge, on the other hand, was of the view that the notice, strictly construed, did not comply with the requirements of the Act, but having so found, he went on to uphold the magistrate on the ground that the appellant had not reacted to the invalid notices sent to him. The judge thought the appellant was bound to react to the invalid notices by, for example, making a reference to the tribunal, so as to be able to claim the protection afforded to it by the Act. Held: 1. Section 4(1) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. 2. The notice of termination given by the respondent was clearly void and had no effect in law on the appellant’s tenancy and the appellant was under no duty, legal or otherwise to react to it. 3. Neither the magistrate nor the judge had jurisdiction in this matter as the tenancy in issue was a controlled one and in signing summary judgment in favour of the respondent, the magistrate acted without jurisdiction Appeal allowed. Landlord and Tenant – controlled tenancy – right to terminate – where one serves notice to another purporting to terminate and tenancy - whether such notice is valid – whether controlled tenancy can be terminated by just issuing a notice. This was a second appeal by the appellant from a decision of a Resident Magistrate; Mombasa giving vacant possession of suit premises of the respondent. The gist if the case is that the respondent served a notice on the appellant purporting to terminate the appellant’s tenancy. The appellant ignored the notice and the Respondent sued him for grant of vacant possession of premises. Respondent won the case whereby the appellant appealed to Supreme Court, whereupon his appeal was dismissed, hence this appeal. The appellant in its defence before the magistrate challenges jurisdiction and also raised the issue of the invalidity of the notice of termination. The Respondent on the other hand had applied for summary judgment claiming the defendant had no arguable defence. Held: 1. A controlled tenancy shall not terminate or be terminated, and in no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Landlord and Tenant Act (Shops, Hotels & Catering Establishments) Act (Cap 301). 2. The notice of termination given by the respondent was clearly void and had no effect in Law on the appellant’s tenancy and the appellant was under no duty, legal or otherwise to react to it. Appeal allowed. Cases Tiwi Beach Hotel Ltd v Juliane Ulrike Stamin [1988-92] 2 KAR 189 Statutes 1. Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (cap 301) section 4(1) 2. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1 |
| Case Outcome: | Appeal allowed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT MOMBASA
(Coram: Gachuhi, Kwach & Omolo JJ A )
CIVIL APPEAL NO 203 OF 1994
BETWEEN
MUNAVER N ALIBHAI T/A
DIANI BOUTIQUE.................................................APPELLANT
AND
SOUTH COAST FITNESS & SPORTS
CENTRE LIMITED ...........................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Mombasa (Justice Wambilyangah) dated 21st September, 1993 in HCC Appeal No 111 of 1992)
JUDGMENT
This is a second appeal from a decision of the Resident Magistrate, Mombasa giving vacant possession of the suit premises to the respondent.
The appellant appealed to the superior court against that decision and its appeal was dismissed, giving rise to the present appeal. There is a concurrent finding by the magistrate and the judge that the appellant was a protected tenant with a controlled tenancy under the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act (Cap 301). The respondent served a notice on the appellant purporting to terminate the appellant’s tenancy. The appellant ignored this notice and took no steps to refer it to the tribunal contending that the notice was invalid as it did not comply with the statutory requirements. The respondent treated the notice as valid and effective and sued the appellant for possession.
The appellant in its defence before the magistrate challenged the court’s jurisdiction and also raised the issue of the invalidity of the notice of termination. The respondent applied for summary judgment under order 35 rule 1 of the Civil Procedure Rules claiming that the appellant had no defence to its claim. Both courts found that the appellant was a protected tenant. The magistrate also held that the notice of termination served on the appellant by the respondent was both valid and effective and, on that basis, the magistrate thought he had jurisdiction to make the order for possession, which he did. The judge, on the other hand, was of the view that the notice, strictly construed, did not comply with the requirements of the Act, but having so found, he went on to uphold the magistrate on the ground that the appellant had not reacted to the invalid notices sent to him. The judge thought the appellant was bound to react to the invalid notices by, for example, making a reference to the tribunal, so as to be able to claim the protection afforded to it by the Act. There can be no doubt that both the judge and the magistrate were clearly wrong in the respective stands taken by each of them.
The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.
As there is no cross-appeal against the concurrent finding by the magistrate and the judge that the tenancy here was controlled, we have to accept that finding as conclusive. The notice of termination given by the respondent was clearly void and had no effect in law on the appellant’s tenancy and the appellant was under no duty, legal or otherwise to react to it. If any authority were required on the manner of terminating a controlled tenancy, then we need go no further than the decision of this Court in the case of Tiwi Beach Hotel Ltd v Juliane Ulrike Stamm [1990] 2 KAR 189. Neither the magistrate nor the judge had jurisdiction in this matter as the tenancy in issue was a controlled one. And in signing summary judgment in favour of the respondent, the magistrate acted without jurisdiction. The judge also fell into the same error.
The result is that this appeal is allowed and the judgments and decrees of the magistrate and the judge are set aside and substituted by an order dismissing the respondent’s suit and application for summary judgment with costs. The appellant will also have the costs of the appeal in the High Court and in this court.
Dated and delivered at Mombasa this 24th day of July 2 1995
J.M GACHUHI
..................................
JUDGE OF APPEAL
R.O KWACH
..................................
JUDGE OF APPEAL
R.S.C OMOLO
..................................
JUDGE OF APPEAL
I certify that this is a true copy of theoriginal.
DEPUTY REGISTRAR
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