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Court of AppealDismissedNot stated in the judgment text provided· [1982] KECA 2 (KLR)

Bachelor’s Bakery Ltd v Westlands Securities Ltd [1982] KECA 2 (KLR)

Court of Appeal of Kenya
6 July 1982
ELE.J.E LawCMC.B MadanKPK.D Potter
3,217 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a written lease agreement for over five years is valid without registration and creates an uncontrolled tenancy outside rent tribunal protection.

What this practically means

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Executive summary

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The respondent landlord sued for possession of a shop demised by a written Agreement for Lease dated September 11, 1969 for six years at Kshs 2,800 monthly, together with Kshs 5,623.40 in arrears of rent, water and conservancy charges and site value rates, and mesne profits. The tenant refused to vacate on expiry of the term on October 14, 1975, contending that the unregistered agreement created only a monthly tenancy under section 106 of the Transfer of Property Act, hence a controlled tenancy within the exclusive jurisdiction of the Business Premises Rent Tribunal under Cap 301. Simpson J granted summary judgment for possession and the sum claimed, holding the agreement to be a binding, specifically enforceable contract exempt from registration and creating a tenancy exceeding five years, outside the Act. On appeal, Law JA held that the written agreement was a contract to the contrary under section 106, valid inter partes without registration though unenforceable against third parties, and that Cap 301, as later protective legislation, does not assume jurisdiction over tenancies contracted in writing for terms exceeding five years. Madan JA, in a concurring judgment, agreed and additionally held that the later Court of Appeal decision in Rogan-Kamper v Grosvenor (CA No 33 of 1976), decided on an unexecuted lease, was best laid to rest and not followed. Potter JA agreed. The appeal was dismissed with costs, without certification for two advocates. The decision affirms the High Court ruling of February 9, 1977 and binds lower courts on the interplay between the Transfer of Property Act and Cap 301.

Key legal issues

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01

Effect of non-registration of a lease created under a written agreement for lease

Holding

The agreement is a contract to the contrary within section 106 of the Transfer of Property Act, valid inter partes without registration though giving no protection against third parties.

Reasoning

Proviso (e) to section 4 of the Registration of Documents Act exempts documents merely creating a right to obtain another document. The parties acted on the agreement as a binding contract; the tenant questioned its validity only after the six-year term had expired. Grosvenor v Rogan-Kamper supports the position.

p. 2
02

Whether the tenancy was a controlled tenancy within Cap 301

Holding

No. The written agreement for a term exceeding five years takes the tenancy outside the Act's definition of a controlled tenancy.

Reasoning

The definition of 'controlled tenancy' excludes tenancies reduced into writing for a period exceeding five years, and 'tenancy' includes one created by a tenancy agreement. The Act, as protective special legislation, allows parties to opt for an uncontrolled tenancy.

p. 3
03

Entitlement to summary judgment for the sum of Kshs 5,623.40

Holding

Summary judgment was rightly entered; the onus was on the appellant to prove discharge of liability for rates and charges and it failed.

Reasoning

Rent for the last 14 days was clearly due and unpaid. The appellant claimed to have paid water, conservancy and site value rates but produced no receipts or exhibits and made no application for cross-examination of the respondent on affidavit.

p. 2

Legal principles established

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  • A specifically enforceable written agreement for lease for a term exceeding five years is valid inter partes without registration and creates an uncontrolled tenancy outside the Landlord and Tenant Act, notwithstanding section 107 of the Transfer of Property Act.
  • The Landlord and Tenant Act, as later special legislation, prevails over the Transfer of Property Act to the extent of conflict and does not assume jurisdiction over tenancies contracted in writing for terms exceeding five years.
  • Section 106 of the Transfer of Property Act does not deem an unregistered lease a monthly tenancy where the parties have agreed in writing on the period of the lease.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.No certificate for two advocates
On appeal from
High Court of Kenya at Nairobi
Not stated
Jurisdiction invoked
First appeal to the former Court of Appeal (not stated by provision in the judgment text)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bachelor’s Bakery Ltd v Westlands Securities Ltd [1982] KECA 2 (KLR)", Case Analysis (1982). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/2/eng@1982-07-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.