Saheb v Hassanally [1981] KECA 9 (KLR)
The bottom line
#A Kenyan landlord who serves a valid tenancy notice that the tenant never refers to a Tribunal gets possession automatically—no need to prove any statutory grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether a single tenancy notice may validly seek termination of the controlled tenancy in the alternative to an increase of rent
Yes. Nothing in sections 4(1) and 4(2) of the Act, Form A, or the purposes of the Act prevents a landlord from issuing a tenancy notice in the alternative, and the practice is not prejudicial to the tenant's legitimate interests.
The word 'or' in section 4(2) may be disjunctive or conjunctive according to context. A tenant faced with such a notice suffers no difficulty: he may refer it to a Tribunal and oppose both termination and alteration, or he may agree to either, in which case the landlord is bound by his election. Requiring a landlord to proceed piecemeal before a Tribunal would add delay and expense for no protective benefit.
Whether the notice was defective for not stating the landlord's intention to occupy the premises for not less than one year under section 7(1)(g)
The notice adequately specified the statutory ground in section 7(1)(g) as required by section 4(5); a statement of the one-year period was not necessary.
Section 4(5) requires only that the notice specify the grounds upon which termination is sought. The notice stated that the landlord required possession for the purpose of running a business, which sufficiently identified the ground under section 7(1)(g). Further, any departure from the prescribed form is saved by section 72 of the Interpretation and General Clauses Act (cap 2) where it does not affect substance or mislead.
The effect of the tenant's failure to refer a validly served notice to a Tribunal
Under section 10 the notice takes effect from the date specified and terminates the tenancy; the landlord is then entitled to possession without proving the statutory grounds, and a judge should not investigate the grounds in the notice, though the quantum of arrears must still be proved for a High Court judgment.
Section 10 provides that where a tenant fails to notify unwillingness to comply or to refer the notice to a Tribunal, the notice takes effect from its specified date. A valid notice is one complying with section 4, including the prescribed form, the statutory grounds and due service. The learned judge was wrong to try the grounds; he should have entered judgment for the landlord on the conceded section 7(1)(g) ground, leaving only the quantum of arrears for proof.
The arrears and mesne profits recoverable after termination of the tenancy
Arrears of Kshs 2,100 agreed at trial were recoverable; mesne profits were awarded at Kshs 350 per month, not the claimed Kshs 3,500, for want of evidence supporting the higher rate.
The tenancy terminated by the notice with effect from December 31, 1977 (as the draft stated; the judgment also refers to December 31, 1976). The agreed six months' arrears of Kshs 2,100 stood. Section 10 does not relieve the landlord of proving the exact quantum of arrears for judgment. There was insufficient evidence to justify mesne profits at the enhanced open-market rate of Kshs 3,500 per month.
Legal principles established
#- A landlord may, in one tenancy notice, seek termination of a controlled tenancy in the alternative to an alteration (increase of rent) of its terms; the word 'or' in section 4(2) may be read disjunctively or conjunctively according to context.
- Where a valid tenancy notice is duly served and the tenant neither notifies unwillingness to comply nor refers the matter to a Tribunal, the notice takes effect under section 10 and the landlord is entitled to possession without proving the statutory grounds in the notice.
- Service on an adult member of the tenant's family at the tenant's last known address satisfies section 4(6) of the Act.
- Deviations from a prescribed statutory form that do not affect substance or mislead do not void the document, by virtue of section 72 of the Interpretation and General Clauses Act (cap 2).
- Where an Act creates a new jurisdiction, procedure, forms or remedies, only the prescribed procedure, forms or remedies must be followed until altered by subsequent legislation.
Court orders
#- 1.The appeal is allowed
- 2.An order awarding vacant possession of the premises to the appellant
- 3.Payment of Kshs 2,100 arrears of rent by the respondent
- 4.Mesne profits at Kshs 350 per month from January 1977 until possession is delivered up
- 5.The appellant is awarded the costs of the appeal and of the High Court proceedings
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court judgment (specific enabling provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenindia Assurance Company Ltd v Kipnyekwei t/a Nyekwei & Company Advocates (Environment and Land Appeal E033 of 2022) [2026] KEELC 2694 (KLR)[2026] KEELC 2694 (KLR)7 May 2026applied
- Kamau v Ali (Environment and Land Appeal E030 of 2024) [2025] KEELC 8264 (KLR)[2025] KEELC 8264 (KLR)27 Nov 2025
- Syan & 2 others v Kihoro (Environment and Land Case 517 of 2017) [2025] KEELC 5176 (KLR)[2025] KEELC 5176 (KLR)9 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Saheb v Hassanally [1981] KECA 9 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/9/eng@1981-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.