[1954] EACA 172

## APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J., and BOURKE, J.

## RAM NATH DHIR, Appellant

$\nu$ .

## THE CITY COUNCIL OF NAIROBI, Respondents

## Criminal Appeal No. 168 of 1954

Criminal Law-Nairobi Municipality (General) By-laws, 1948-By-law 314-Unlawful use of a building as a lodging house without licence-Whether occupants tenants or merely lodgers—Question of fact—Tests applied.

The appellant was landlord of a large dwelling-house off Juja Road, Nairobi. A municipal licensing inspector found the appellant living there with three other families. All the occupiers of the house had separate entrances—had "tenancy agreements" in writing and paid "rent". No services were rendered by the landlord, who supplied neither food nor furniture. Each occupier paid his own water and electricity charges and combined to pay the sweeper cost. The landlord did not enter the rooms occupied by the others nor did he have the keys for their doors. He was charged and convicted under by-law 314 of the Nairobi Municipality (General) By-laws, 1948, with "using as a lodging-house a building of which he was landlord whilst the same had not been licensed". The magistrate<br>confined himself strictly to the definition of "lodging-house" and "lodger" contained in the by-law and ruled that English case law had no application. The landlord appealed. The appeal turned on whether or not the dwelling was used as a lodging-house.

*Held* $(27-4-54)$ .—(1) The test whether an occupier is a tenant or a lodger is the control or paramount occupation by the landlord.

(2) The question whether a man is a lodger merely or whether premises have been<br>let to him so that he is a tenant must depend upon the circumstances of each case. If the householder retains to himself the general control of the house with the right of interference, a person who occupies part of that house would seem to be a lodger.<br>It is always a question of fact and, if a person to whom the separate use and occupation of the rooms has been granted, has an exclusive the landlord has no right to interfere with and exercise control over them, then such person is a tenant notwithstanding that the landlord resides on the premises and retains control of the staircases and other parts used in common.

(3) On the facts the persons residing in the house were clearly tenants and not lodgers.

The appeal was allowed.

Authorities cited: Megarry Rent Acts. 7th Ed., page 423; Woodfall's Landlord and Tenant, 24th Ed., page 10; Helman v. Horsham and Worthing Assessment Committee, $(1949)$ 2 K. B. 355, 347.

Shapley for appellant.

Mackie-Robertson for respondent.

JUDGMENT.—The appellant was convicted of the offence of "using as a lodging-house a building of which he is the landlord whilst the same had not been licensed *contra* by-law 314 of the Nairobi Municipality (General) By-laws, 1948"; and the appeal falls to be decided by the one question of whether or not the building was used as a "lodging-house". A "lodging house" is defined in by-law 313 as "a house or part of a house ... which is let or sub-let to two<br>or more lodgers" and a "lodger" is defined as "a person to whom any portion of such house or any room therein has been let as a lodging or for his use or occupation". In brief lodging-houses are let to lodgers and lodgers have the use and occupation of portions of lodging-houses let to them. The definitions are not illuminating especially as the word "let" is inapplicable to one whose status is that of a lodger. It has been held in England that provisions of the Rent Acts do not protect lodgers and others who, having no tenancy but merely a licence, could not show that the premises had been let to them. (The Rent Acts by Megarry, 7th Ed. at page 423); and in Woodfall's Landlord and Tenant, 24th Ed. at page 10, it is said that "the question whether a man is a lodger merely, or whether premises have been let to him so that he is a tenant must depend upon the circumstances of each case". "There is involved," the learned author goes on, "in the term 'lodger' that the man must lodge in the house of another man and with him; if the householder retains to himself the general control of a house, with the right of interference, a person who occupies a part of that house would seem to be a lodger. The fact that the landlord resides in the house may be evidence that an occupier of rooms there is merely a lodger; but it is always a question of fact, and if a person to whom the separate use and occupation of rooms has been granted has an exclusive enjoyment of such rooms, and the landlord has no right to interfere with and exercise control over them, then such person is a tenant notwithstanding that the landlord resides on the premises and retains control of the staircases and other parts used in common". There is a long line of cases in which it has been held that the test is whether the landlord had "control" or "paramount occupation". In the case of Helman v. Horsham and Worthing Assessment Committee, (1949) 2 K. B. 335 at page 347, Evershed, L. J., said "I agree that the test not only for rating purposes." but as I think, for other purposes is what has been referred to as control or paramount occupation. . . If in the present case Miles, when going away for a week-end is entitled to lock his doors and say to Helman: 'I do not want either you or anyone else to go into my rooms when I am away', then he has, prima facie, such exclusive occupation of his rooms as would be consistent with a tenancy, but inconsistent with the position of a lodger". All the evidence in<br>the instant case is that the occupiers of the building of which the appellant is the landlord are tenants and indeed the advocate for the respondent conceded that they were. Apart from considerations which arise out of other by-laws in section 22 within which by-law 314 falls, this concludes the matter and the appeal must be allowed. The conviction and sentence are set aside.