[1931] EACA 3

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR CHARLES GRIFFIN, C. J. (Uganda), PICKERING, C. J. (Zanzibar), and THOMAS, J. (Kenya).

## RIBEIRO (Appellant) (Original Defendant)

## NAIROBI MUNICIPAL COUNCIL (Respondent) (Original Plaintiff). C. A. $15/1931$ .

## Local Government (Municipalities) Ordinance, 1928-Fees for Sanitary Services—Right of recovery of.

- **Held by Griffin, C. J. and Pickering, C. J.** (4-7-31):—That when dues<br>payable under section 85 of the Local Government (Municipalities)<br>Ordinance are usually paid by the occupier they cannot be recovered from the owner unless a notice has been given to the owner within a reasonable time after the lapse of six weeks from the date of demand. - Held by Thomas; J. (dissenting): $-$ That when the dues have remained unpaid for six weeks after demand, notice may be given to the<br>owner at any time within the period limited for their recovery.

Atkinson (for Modera) for Appellant.

Eckersley, Town Clerk, for Respondent.

The rates in respect of certain premises in Nairobi were usually paid by the occupier. The conservancy dues in respect of the months of February, March and April amounted to Sh. 20. An account was rendered to the occupier on the 17th of April, 1930. This was not paid. A second letter was sent on the 29th of June, 1930. On the 30th of June, 1930, a letter was sent to the owner. This letter contained the following notice:-

"I beg to inform you that charges due to the Municipal Council in respect of the premises occupied by your tenant Mr. J. M. D'Mello at present amounting to Sh. 20 have remained outstanding for a period exceeding six weeks. I must advise you, in terms of section 85 $(2)$ of the Local Government (Municipalities) Ordinance, 1928, that, unless these charges are paid by the tenant, you as landlord are liable for the payment and, after the expiry of six weeks from the delivery of this notice, legal action may be taken against you for the recovery of the debt."

A correspondence ensued and in the end the owner refused Proceedings were then taken before the Resident $\mathrm{to}$ pay. Magistrate of Nairobi who held that these dues could be There was an appeal from that recovered from the owner. decision to the Supreme Court of Nairobi which upheld the decision of the Magistrate. From that decision an appeal was made to the East African Court of Appeal sitting at Mombasa.

Atkinson for Appellant submitted that section 85 (2) should be read with the interpretation "when" for "if" in the proviso thereof; that the notice for payment of the February rates was delivered to the occupier about the 10th March, that on 17th April notice calling for the March and February rates was delivered to him, and that in June he was called upon to pay the rates for February, March and part of April $(2\frac{1}{2}$ months) representing by the sum of Sh. 20 the amount originally sued for in the Resident Magistrate's Court, Nairobi. He pointed out that the occupier had left in the middle of April and that notice was not delivered to the owner until 29th June. If the rates were payable on the first day of each month, the six weeks prescribed by section $85$ (2) would terminate in the middle of the month following.

Eckersley for Respondent submitted that the section prescribed service on the owner or occupier for the time being, and that therefore the Municipal Council was entitled to sue at any time after notice had been served. He submitted that under sub-section 2 the Council are entitled to proceed jointly and severally against the owner and occupier, and that therefore the present action was fully justified.

The following judgments were delivered: -

SIR CHARLES GRIFFIN, C. J.-By-law 459 of the Nairobi Township By-laws, 1926, prescribes that the monthly fee specified for sanitary services shall be paid quarterly in advance on the 1st January, 1st April, etc.

Section 85 $(1)$ of the Local Government (Municipalities) Ordinance, 1928, provides that the fees shall be recoverable from the owner and occupier jointly and severally of the premises in respect of which the services are rendered.

Section 85 (2) provides that where fees remain unpaid for a period of six weeks after the date on which written notice shall have been given by the Council to the owner or occupier of his indebtedness, the Council may, after such date, proceed. jointly and severally against the owner and occupier for the amount of the fees.

Section 85 $(2)$ contains a proviso that where the fees are as a general rule recovered from the occupier, the Council shall give written notice to the owner if they shall at any time remain outstanding for a period exceeding six weeks.

From the evidence in the Magistrate's Court, it appears that despite the provisions of By-law 459 the fees are payable as a matter of practice at the end of each month-in arrear.

It is admitted in this case the fees were as a general rule paid by the occupier, so that the proviso to section 85 (2) applies.

Before the Council can sue it must give written notice to the owner or occupier of indebtedness and thereafter is disabled from suing for recovery of the fees until a period of six weeks from the date of the notice has elapsed. By law the fees for these months are due in advance on the first day of each quarter and from that date the rate is outstanding, and the Council is bound to give notice to the owner if the rate has not been paid within six weeks from the beginning of the quarter. The effect of this proviso is that if the notice to the owner prescribed by the proviso were promptly given, that is on the expiry of six weeks from the beginning of the quarter, it would in no case be given later than the notice mentioned in the first part of section 85 $(2)$ and would almost invariably be given before that notice. In the practice that has sprung up of seeking payment a month in arrear, the notice to the owner of his tenant's default would be given at least a month before the Council could sue.

We have been asked to say that the words in the proviso " if such charges shall at any time remain outstanding " should be interpreted as meaning "when such charges", etc., so as to impose upon the Council the obligation of giving notice prescribed by the proviso to the owner as soon as the six weeks from the date at which the rate began to be outstanding had expired. I do not think we need go so far as that, but having regard to the object of the proviso, which plainly is for the protection of the owner, I am of opinion that notice should be given within a reasonable time and a reasonable time is, in my opinion, such time as will ensure that the owner receives the notice before he becomes liable to be sued under the earlier part of the section.

I agree with the learned Chief Justice of Kenya that the provisions of the section are not easy to construe. I deprecate the introduction of a practice in collecting the fees which is not in accordance with the by-law on the subject. If the provisions of the by-law are unsuitable it is quite easy to alter them, so that the law and the practice may be the same.

In my opinion the notice to the owner in this case not having been given before his liability to suit had arisen, the Council is disabled from suing him.

I would allow the appeal with costs both in this Court and the Courts below.

PICKERING, C. J.—This appeal arises out of proceedings for the recovery of charges for sanitary services rendered by the Nairobi Municipality in respect of premises occupied by a man de Mello.

The appellant is the owner of the premises. The conservancy charges in Nairobi are by by-law payable every three months in advance. In practice occupiers benefitting by the services rendered are expected to pay at the end of each month. The charges become payable automatically. No proceedings can

however be instituted by the Council for the recovery of any such charges until a notice has been served on the owner or occupier of the premises concerned of his indebtedness. Such a notice is in practice only served in Nairobi when the occupier is in arrear for the period of one month or upwards, and in my opinion the words "notice of his indebtedness" are apt only to describe a notice served upon a debtor who has already made some default in payment. The procedure laid down in section 85 of Chapter XIX of 1928 enables the Council to sue for the amount of the charges within twelve months of the service of such notice provided however that the charges have remained unpaid for six weeks after service of the notice. The period during which the Council may sue is thus curtailed to ten-and-ahalf months. It appears from the evidence given in the suit that the Council were in this case looking to de Mello the occupier for payment. It is but natural that the Council should look for payment primarily to the person benefitting by the services rendered. The proviso appended to the second subsection of section 85 therefore is relevant in these proceedings. This proviso imposes upon the Council, in the circumstances existing in this case, the duty of giving a written notice to the owner of the premises if the charges shall at any time remain outstanding for a period exceeding six weeks. 'This written notice would, I assume, be a notification that the Council were no longer willing to look to the occupier for payment but proposed to call upon the owner.

Under the by-laws of the Municipality the conservancy charges become outstanding on the first day of the month. $\mathbf{It}$ is said that the charges are prescribed by the consolidated rules, 1926, part VI (rules 458 to 462). The fees then payable in respect of premises for the months of January, February and March become an outstanding on the 1st January. If the occupier fails to pay during January, and the Council decide to take advantage of the liability imposed on the owner by section 85, sub-section (1), it is necessary that they cause a notice to be served on the owners. This notice to be effective must be served if such charges shall at any time remain outstanding for a period exceeding six weeks. These words are of doubtful meaning but I incline to the view that they should be construed as equivalent to some such phrase as "written notice shall be given so soon as such charges have remained as an outstanding for a period which exceeds six weeks." In this case the charges sought to be recovered become an outstanding on the 1st February. If the Council wish to enable themselves to recover from the owner the notice of such intention should then have been served on the appellant on or with all reasonable diligence after the 15th March. This date would precede the expiration of a period of six weeks following upon the service of a notice of indebtedness. These two periods of six weeks referred to in

section 85, sub-section $(2)$ , bear no relation to each other except that the currency of the period of six weeks of outstanding would begin before the service of a notice of indebtedness. In mv opinion it is not open to the Municipality to serve a notice of indebtedness before a state of indebtedness has arisen. Now as I have said the Council in this case did not serve a notice upon the owner calling upon him to pay the conservancy charges until the end of June. De Mello had vacated the premises on the 14th April and the fees had been an outstanding from the 1st February. The notice was not served so soon as de Mello's default exceeded a period of six weeks from the 1st February. What effect results from the omission? Again the provisions are vague and of doubtful meaning. Looking at the section as a whole, however, I feel that the omission of the Council to serve a notice within a reasonable time after the expiration of the period of six weeks from the 1st February disabled the Council from suing the owner for such conservancy charges as became outstanding at that date.

For these reasons I would allow this appeal with costs here and in the Courts below.

THOMAS, J.—Section 85 of the Local Government (Municipalities) Ordinance, 1928, provides for the recovery of the money due in respect of certain services from the owner and occupier of premises jointly and severally. If such charges remain unpaid for a period of six weeks after notice has been given to the owner or occupier, proceedings may be taken against the owner and occupier for the time being, jointly and severally, for their recovery. There is a proviso that where the charges are usually paid by the occupier a written notice shall be given to the owner if such charges shall at any time remain outstanding for a period exceeding six weeks.

It has been contended that such notice should be given immediately on the conclusion of the period of six weeks during which the charges have remained unpaid. Although the difficulty of carrying out any such requirement would be very great it should not be considered if the clear and expressed intention of the section was that such a notice should be given. But I do not consider that the section does fix any such exact time. $\mathbf{It}$ requires that where the charges have not been paid for six weeks, notice should be given. Following on the wording of the previous portions of section 85 that notice must be given prior to the taking of proceedings, and proceedings must be commenced within twelve months when the charges have been unpaid for six weeks after giving notice to the owner or occupier. All those provisions have in my opinion been complied with.

That also is the finding of the Supreme Court in upholding the decision of the Magistrate on appeal.

The appeal must therefore be dismissed.