[1952] EACA 279

# ORIGINAL CIVIL

# Before CONNELL, J.

### MANILAL AND COMPANY, Applicant (Original Tenants)

#### ν.

# MOMBASA LAND DEVELOPMENT COMPANY, Respondents

### (Original Landlords)

# Civil Case No. 76 of 1952 (Mombasa)

Landlord, tenant—Increase of Rent Restriction Ordinance, section 16 (2), standard rent—Apportionment ordered but not made—Whether possession can be ordered.

A landlord of shop premises let a portion of them to the tenants at a monthly rental of Sh. 150 in 1948. In 1951 the Coast Rent Control Board fixed the standard rent for the whole of the premises and at the same time ordered apportionment. Apportionment was not effected and thereafter the Board ordered the appellant (tenant) to pay certain arrears of rent and made an order for possession.

The appellant argued that the rent was not lawfully due until the standard rent of his premises had been fixed by apportionment.

Further he argued that the Board did not consider "reasonableness" when ordering possession.

Held (11-6-52).-(1) Before possession can be ordered the Board must know exactly what rent is due under the Ordinance apart from under the contract.

(2) The Board must consider reasonableness under section 16 (2) of the Ordinance before ordering possession.

(3) When the standard rent has been fixed and apportionment ordered but not effected the Board should not be asked to make a possession order as it must know how much rent is "lawfully due", i.e. under the Ordinance.

Appeal allowed.

Cases referred to: Kimm v. Cohen, 40 T. L. R. 123; Austin v. Greengrass (1944)<br>A. E. R. 456-457; Smith v. Poulter (1947) K. B. 339-341; Davies v. Warwick (1943) 112 L. J. K. B. 245-249; Le Fevre v. Hirsi (1931) 100 L. J. K. B. 733-737.

#### Cleasby for appellant.

### Budhdeo for respondent.

IUDGMENT.—This appeal raises points of importance in connexion with shop premises erected in 1948 and let that year by the landlord-respondents to the tenants-appellants at a rent of Sh. 150 per mensem.

A certificate of the Coast Rent Board's order of 5th February is filed with the grounds of appeal; it refers, inter alia, to the standard rent of the whole of the premises which was fixed by the Board on 17-11-51 at Sh. 7,295 per month made payable from 1st December, 1951, and it also ordered (on 17-11-51) the Executive Officer to put up a scheme for apportionment. In point of fact neither the appellant's shop nor any of the other tenants' shops have up to date been apportioned. The certificate also recites the Board's order that the appellant<br>do pay arrears of rent Sh. 920/70 from June-November, 1951, at the rate of Sh. 153/45 per month. The Board also, as recited in their certificate, made an order for possession.

Now Mr. Cleasby for the appellant has, to summarize his arguments and grounds of appeal. relied as his main ground that the Board was unable to order possession to the landlord under section 16 $(1)$ $(a)$ , Increase of Rent Restriction Ordinance, as it cannot be said there is any rent lawfully due in the sense that until the standard rent due for the appellant's shop premises is fixed by apportionment, rent cannot be said to be lawfully due.

I note that at page 333, Megarry, 6th Edn., it is stated: "A tenant may claim an apportionment even after his contractual tenancy has determined (in the present appeal it is conceded it has been determined) and the landlord has commenced proceedings for possession". Mr. Cleasby relies on the cases of Kimm v. Cohen. 40 T. L. R. 123. and Austin v. Greengrass (1944) 1 A. E. R., page 457. The first case laid it down that an apportionment of rent entitled the tenant to recover from the landlord rent paid in excess of the permitted or apportioned rent before the date of apportionment. It should be noted that in that case (a claim for rent by the landlord) there were a number of adjournments before the apportionment was finally agreed on; it should also be noted that the tenant in that case had totally withheld rent for seven months.

In Austin v. Greengrass it was held, inter alia: (1) that the magistrate ought to have found that the ground floor had a standard rent since the commencement of the tenancy; (2) the rent agreed as payable was a provisional rent to be adjusted as soon as the standard rent was ascertained.

Now there is no doubt that the tenant in a letter written as early as 8th September, 1950, had admitted that under the original agreement he was bound to pay Sh. 150 per month, but in the same letter he challenged this rent and stated that it should be reduced by Sh. 75 per mensem; this letter is in file 622. which was also before this Court for the purpose of this appeal as the former. (No. 622) was the case in which the standard rent was fixed for the whole premises. There is equally no doubt that the tenant made his last payment of arrears of contract rent up till 2nd May, 1951.

But I have still to construe the words "Any rent lawfully due from the tenant" in section 16 (1) $(a)$ ; if the case were altogether outside the Ordinance no difficulty would arise and the landlord would be entitled to possession automatically. But here it has been assumed from the very outset that the premises are under the Increase of Rent Restriction Ordinance.

Quite apart, therefore, from whether rent lawfully due means contract rent and not standard or apportioned rent, I cannot under any circumstances see how a Court or Board can be in full possession of all the necessary facts to enable it to decide whether to pass a possession order under section 16 or not until it knows exactly what rent is due under the Ordinance which may be very different rent from that which was formerly due under the contract. Now this brings me to a second ground, which as a matter of fact was not taken by Mr. Cleasby at all in his grounds of appeal: Mr. Budhdeo, who had opportunity of contesting it, strenuously opposed the ground being taken in argument by Mr. Cleasby; that ground is the question of reasonableness. Mr. Cleasby has argued that he can take the ground as in his submission it has been held by the authorities that the requirement of consideration by the Board of reasonableness is so important that in effect it limits the jurisdiction of the Court when considering the issue of an order for possession. The cases he relied on were Smith v. Poulter (1947) K. B. 341, Davies v. Warwick (1943) 112 L. J. K. B., at page 249 and *Le Fevre v. Hirst* (1931) 100 L. J. K. B. at page 737.

In the first case Denning J. (allowing the appeal) stated: "When a house is one to which the Rent Restriction Acts apply, then under section 3 of the Act (much the same as section 16 (2) of the Kenya Ordinance) the Court has no power, even though some rent is in arrear and unpaid, to make an order or give judgment for possession unless the Court considers it reasonable to do so".

That provision limits the jurisdiction of the Court with the result that in any case where there is reason to think the house is within those Acts it is the duty of the Courts to see whether the conditions required by the Acts are satisfied even though no such point is pleaded or raised by the tenant." In Le Fevre v. Hirst it was held that the point of reasonableness could be taken on appeal though it was not taken in the County Court. Quite apart from authority, I should have thought that a compliance with section $16$ (2) was mandatory and as there is nothing on the record to show that the Board had taken the point of reasonableness, the order as to possession must be set aside and a retrial ordered.

In view of the conclusion I have come to, I do not propose to consider the other grounds of appeal.

I wish to add this that as a matter of practice where standard rent has been. fixed and apportionment ordered and the apportionment has not in fact been. made I can think of nothing more embarrassing than for a Court or Board to be asked to make a possession order; how under such circumstances can it possibly be in full possession of the facts as to: (a) how much rent is "lawfully due"; (b) whether they can decide in all the circumstances that a possessory order is. $(b)$ reasonable. I will also say this, that in my view once the contractual tenancy is determined and the tenancy becomes a statutory one the words "lawfully due" can have only one meaning and that is lawfully due under the Statute. Even so I cannot assume that the tenant would be justified in not paying a cent towards rent. If he totally withheld, it may well be that the Court might decide that such an attitude was unreasonable in a suit or claim for affixing standard rent and for possession.

The appeal on the issue of possession must succeed and the Board's order as to possession be set aside; the apportionment should be expedited. The tenant would be well advised to make payments into the Board forthwith subject to the final apportionment being made.

The appellant having substantially succeeded in a point of law which he did not specifically raise in his grounds of appeal each side will bear its own costs.