[2019] KEELC 240 (KLR)
The court found that the Plaintiff, as administrator of the estate, properly issued a notice of termination of the controlled tenancy to the Defendant in accordance with the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. The Defendant failed to contest the notice or refer the matter to the...
Source-derived case information.
- Citation
- [2019] KEELC 240 (KLR)
- Parties
- Plaintiff: Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Sushila Anantrai Raval); Defendant: Afapack Enterprises Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 33 of 2009
- Procedural Posture
- Land and Environment Case / Judgement
- Outcome
- Judgement for the Plaintiff. Orders granted as prayed in the plaint.
- Legal Topics
- Controlled Tenancy, Notice of Termination, Vacant Possession, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Punita Jayant Acharya (Suing as the Administrator of the Estate of the Late Sushila Anantrai Raval)
Plaintiff
Afapack Enterprises Limited
Defendant
Procedural Posture
Land and Environment Case / Judgement
Legal Issues
- 1 Whether the Defendant was occupying the suit property under a controlled tenancy and whether the Plaintiff lawfully terminated the tenancy.
- 2 Whether the Defendant was entitled to remain in occupation after failing to contest the notice of termination.
- 3 Whether the Plaintiff is entitled to orders for vacant possession, eviction, and a permanent injunction.
Ratio Decidendi
The court found that the Plaintiff, as administrator of the estate, properly issued a notice of termination of the controlled tenancy to the Defendant in accordance with the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act. The Defendant failed to contest the notice or refer the matter to the tribunal within the time required by law. As a result, the notice took effect, and the Defendant lost any right to continue occupying the premises. The Plaintiff was therefore entitled to vacant possession, eviction in default, a permanent injunction, and costs as prayed in the plaint.
Court Disposition
Judgement for the Plaintiff. Orders granted as prayed in the plaint.
Orders
- The Defendant shall vacate the suit premises within 30 days of the date of judgement.
- In default, the Defendant shall be evicted from the suit premises with the assistance of the Officer Commanding Parklands Police Station.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT AT NAIROBI
ELC CASE NO. 33 OF 2009
PUNITA JAYANT ACHARYA...........................................................PLAINTIFF
(Suing as the Administrator of the Estate of
the Late Sushila Anantrai Raval)
VERSUS
AFAPACK ENTERPRISES LIMITED...........................................DEFENDANT
JUDGEMENT
1. The Plaintiff filed this suit on 28/09/2009 as High Court Civil Suit Number 530 of 2009 in her capacity as the executrix and administrator of the estate of the late Sushila Anantrai Raval, the registered proprietor of the land reference number 1870X/38(“the Suit Property”). On her appointment as executrix, she sought to execute a new lease with the Defendant who was a tenant in the Suit Property during Sushila Anantrai Raval’s lifetime since the lease had expired. She sent the new lease to the Defendant, but the parties failed to agree on the terms of the new lease and in particular, the increment of rent from kshs.60,000/= to 75,000/= and repairs to be carried out on the premises. The Defendant did not sign the new lease, thereby bringing the tenancy between the Plaintiff and the Defendant within the purview of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act as a controlled tenancy.
2. The Plaintiff contended that the Defendant requested to have some repairs undertaken on the Suit Property but subsequently refused to vacate the premises to allow for the repairs to be done. The Plaintiff issued a notice of intention to terminate the tenancy which the Defendant did not contest. The Defendant failed to comply with the notice prompting the Plaintiff to file this suit seeking an order to compel the Defendant to vacate and hand over vacant possession of the suit property to the Plaintiff within 7 days, or that in default, the Defendant be evicted from the said property with the assistance of the Office Commanding Parklands Police Station. She also sought a permanent injunction to restrain the Defendant from interfering with her quiet possession of the suit property and the costs of the suit.
3. The court entered interlocutory judgement against the Defendant who failed to file a defence on time .The Defendant moved to the Court of Appeal contesting the interlocutory judgement but the Court of Appeal declined to set aside the interlocutory judgement.
4. The Plaintiff gave evidence and produced the documents in support of her claim. The court has considered the claim, evidence and the submissions filed by the Plaintiff. Section 4 of the Landlord and Tenant (Shops, Hotel and Catering establishments) Act provides that a landlord who wishes to terminate a controlled tenancy must give the tenant notice in the prescribed form. The Plaintiff issued to the Defendant (a notice of termination which was to take effect on 15/04/2009. If the Tenant wished to dispute the notice, then it should have notified the landlord of its unwillingness to comply with the notice or referred the matter to the tribunal as provided by Section 6 of the Act. There is no evidence that the Defendant contested the notice and so the notice given by the Plaintiff took effect from the date specified in it.
5. Having failed to contest the notice within the time required by the law, the Defendant has no right to continue occupying the suit premises. The court grants the prayers sought in the plaint dated 28/09/2009.
6. The Defendant shall vacate the suit premises within 30 days of the date of this judgement. In default, the Defendant shall be evicted from the suit premises with the assistance of the Officer Commanding Parklands Police Station. The Defendant shall pay costs of the suit.
Dated and delivered at Nairobi this 13th day of December 2019
K.BOR
JUDGE
In the presence of:-
Mr. J. Chigiti holding brief for Mr. Munyua for the Plaintiff
Mr. V. Owuor- Court Assistant
No appearance for the Defendant