[2002] KEHC 804 (KLR)
The court held that it is not for the Tribunal or court to assume facts regarding the status of the landlord in the ongoing tenancy termination case (RRT 076/94). The proper procedure is for the parties to fix the case for hearing, at which point the landlord can appear and establish his interest or absence thereof....
Source-derived case information.
- Citation
- [2002] KEHC 804 (KLR)
- Parties
- Appellant: M.R.K. Amiri; Respondent: Abdulraden S.A. Kadiry
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 116 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Directions After Remittal From Appeal
- Outcome
- Directions issued; RRT 076/94 to be heard first, then Assessment No. 20 of 2001. No order as to costs.
- Legal Topics
- Rent Restriction Tribunal Procedure, Landlord Tenant Disputes, Appeal Remittal, Termination of Tenancy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.R.K. Amiri
Appellant
Abdulraden S.A. Kadiry
Respondent
Procedural Posture
Civil Appeal / Ruling on Directions After Remittal From Appeal
Legal Issues
- 1 Whether the Rent Restriction Tribunal case RRT 076/94 should be terminated due to change of landlord.
- 2 Whether the Tribunal or court can terminate a case on its own motion without evidence from parties.
- 3 Proper sequence for hearing the termination and assessment cases involving the same premises.
Ratio Decidendi
The court held that it is not for the Tribunal or court to assume facts regarding the status of the landlord in the ongoing tenancy termination case (RRT 076/94). The proper procedure is for the parties to fix the case for hearing, at which point the landlord can appear and establish his interest or absence thereof. If the landlord does not appear or is not interested, the case may be dismissed in accordance with established procedure. The court cannot terminate the case on its own motion without evidence. Furthermore, as the termination of tenancy case concerns the same premises as the assessment case, it is proper that the termination case be heard and determined first. Only if the...
Court Disposition
Directions issued; RRT 076/94 to be heard first, then Assessment No. 20 of 2001. No order as to costs.
Orders
- RRT 076/94 to be set down for hearing and parties to proceed accordingly.
- Assessment case No. 20 of 2001 to be heard after conclusion of RRT 076/94.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO.116 OF 1995
M.R.K. AMIRI ……………….……………………………… APPELLANT
VERSUS
ABDULRADEN S.A. KADIRY ………….……………….. RESPONDENT
R U L I N G
The Rent Restriction Tribunal heard RRT 076/94 and made a determination. One party filed an Appeal being H.C. Civil Appeal No.116 of 1995. That Appeal was heard and the High Court directed that RRT No.076 of 1994 be heard afresh. That hearing has not proceeded. In the intervening period, the Landlord in RRT No.076 of 1994 transferred his leasehold interest to his brother, so that strictly in law, there is now a new Landlord. The tenant remains the same. The new Landlord has filed Rent Restriction Assessment No.20 of 2001. That is also before the Rent Restriction Tribunal. The Chairman for the same Tribunal has referred the whole matter to me for Directions.
In my humble opinion, as RRT 076 of 1994 is still alive, it is not up to the Tribunal to know whether the Landlord in that case has ceased to be landlord or not. These are matters of facts which will come up and will be finally known when the case comes up for hearing. It is then that the Landlord cited in that case will appear or not appear and give evidence to show he is no longer the landlord and or whether he is still interested in the case. If he is not interested in the case or does not appear on the hearing date then as he was the Plaintiff in that case, the case will be dismissed. If he is interested then he will produce evidence to prove his interest and the hearing will continue in the normal manner. In short, the court on its own cannot terminate the case as that may make the court be seen as a witness in a case before it. It cannot assume facts that are not before court in evidence. It must allow the parties to fix the case for hearing and let them do what they like with their case. Put another way the court must be moved into next action. If Landlord in that case does not take steps to fix down the case for hearing or if the tenant does not take steps to fix the case then the court knows what procedure to be taken after a period prescribed by law has elapsed.
As the RRT 076/94 was for termination of tenancy in respect of the same premises, it is only proper that that case be fixed for hearing first before the Assessment case because Assessment can only proceed if tenancy is not terminated.
I therefore direct that the RRT 076/94 be set down for hearing and let the parties proceed with it in one way or the other. Once it is out of the way Assessment case N0. 20 0f 2001 should be heard. Directions accordingly.
No order as to costs.
Dated at Mombasa 26th Day of November 2002.
J.W. ONYANGO OTIENO
JUDGE