WJ Blakeman Ltd v Associated Hotel Management Services Ltd [1985] KECA 9 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an occupier who stays on without paying rent owes it to whoever takes over the property, even without a registered lease.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff company, whose own lease was unregistered, stood in the position of the lessor so as to claim rent from the defendant company under section 109 of the Transfer of Property Act
- 2.Whether constructive possession, as opposed to physical possession, together with payment of rent suffices to create a monthly tenancy in the plaintiff company
- 3.Whether there was privity of contract or estate between the plaintiff and defendant companies, and whether estoppel arose preventing the defendant from denying liability to pay rent
- 4.Whether the plaintiff company had a superior title or right to receive rents from the defendant company
Key legal issues
#Whether constructive possession suffices to create a periodic tenancy under section 107 and section 109 of the Transfer of Property Act
Yes, in the context of a concurrent lease envisaged by section 109, constructive possession coupled with the intention revealed by the transaction suffices; it would be unwise to define exhaustively when constructive possession will or will not suffice
The court reasoned from first principles since there was no East African authority on the point. What the law requires to impute a monthly tenancy is conduct showing an intention that the lessee takes and the lessor gives the property on payment of rent. The outstanding features are possession and payment of rent, and possession may be constructive where the transferee cannot physically take the occupied flats. Indian authorities (Mohan Lal v Ganda Singh, followed in Jainarain) support constructive delivery for section 107.
Whether the unregistered 1977 leases between Mr Kahara and the defendant company continued as periodic tenancies
Yes. The leases of six months and twelve months required no registration; the 36-month lease was void for want of registration, but in each case the defendant held over or became a monthly tenant by possession and payment of rent
Section 107 requires registration only for leases from year to year or exceeding one year. The unregistered long lease became void, but holding over under section 116 or possession plus payment of rent under section 106 produced periodic monthly tenancies. These periodic leases fall within the section 105 definition of a lease and were subsisting when Mr Kahara dealt with the plaintiff company.
Whether the defendant's denial of privity of contract or estate defeated the claim
No. Under section 109 the plaintiff, as transferee of the lessor's interest, possessed all the lessor's rights including the right to claim rent, and the defendant knew of and accepted the transaction
The defendant was informed by correspondence of the plaintiff's take-over, referred in its own letter of May 24, 1978 to a meeting agreeing that Mr Kahara could let the whole premises, and eventually accepted alternative accommodation from the plaintiff. Having remained in occupation from June to September 1978 paying no rent to anyone, it was liable to the plaintiff for use and occupation. The estoppel and assignment (section 130) arguments were left undecided.
Whether the plaintiff's own unregistered lease defeated its claim as lacking superior title
No; the plaintiff could at best take constructive possession of the six occupied flats, and such possession was sufficient possession to ground a monthly tenancy of the whole premises
The plaintiff physically possessed the grounds and six vacant flats and could only take constructive possession of the six occupied flats. The court held that constructive possession, being the only possession the section 109 scheme contemplates for a transferee pending the original lessee's term, was sufficient. English writers on concurrent leases, which take effect in reversion and operate as an assignment of the reversion, were treated as supportive though not conclusive.
Legal principles established
#- A transferee of the reversion may acquire a monthly tenancy by constructive possession of parts of the property still occupied by the original lessee, and thereafter enjoys all the lessor's rights under section 109 of the Transfer of Property Act, including the right to claim rent
- An unregistered agreement to lease for a term exceeding one year cannot operate as a lease but can operate as an agreement inter partes which, followed by possession and payment of rent, creates a tenancy from month to month
- An action for rent against an occupier is in personam, so no registered lease is needed to fix liability for rent for flats actually or constructively occupied
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Principal judgment. Held that the unregistered 1977 leases devolved into periodic monthly tenancies, and that Mr Kahara's transferee (the plaintiff company) could acquire a monthly tenancy by constructive possession of the flats still occupied by the defendant, placing it in the position of the lessor under section 109 of the Transfer of Property Act and entitling it to rent for use and occupation.
the plaintiff company had acquired a monthly tenancy falling within the definition of a periodic lease from month to monthp. 4
Wrote the judgment
Concurring opinion on the meaning of possession, citing English authorities that 'possession' has no single precise definition and includes constructive possession and the right to receive rents and profits. He found the appellant estopped from denying liability, the action being in personam, and agreed with Platt Ag JA that the appeal should be dismissed with costs.
The appellant was estopped from denying liability on the premises that not only it did not pay the rent to the original landlord, it also remained acquiescently in possession of the flatsp. 5
Wrote the judgment
Concurred, adding that under Souza Figueiredo & Co Ltd v Moorings Hotel Co Ltd an unregistered agreement exceeding three years cannot operate as a lease but can operate as an agreement inter partes which, followed by possession and payment of rent, creates a monthly tenancy, and distinguishing Mlay v Phoneas relied on by the appellant.
whereas the agreement could not operate as a lease it could operate as an agreement inter parties which if followed by possession and payment of rent creates a tenancy from month to monthp. 6
- On appeal from
- High Court
- null
- Jurisdiction invoked
- First appellate appeal to the Court of Appeal (statutory appeal from the High Court, Mombasa)
Relief refused
#Setting aside of the High Court award of shs 55,000 rent (shs 45,000 for six flats June-August 1978 and shs 10,000 for four flats September 1978)
The defendant knew of the take-over by the plaintiff company and remained in occupation without paying rent to anyone; constructive possession sufficed to create the plaintiff's monthly tenancy
A finding that no estoppel arose against the defendant company
The court found it unnecessary to decide the estoppel point since the statutory claim succeeded
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly it is my view that the learned judge came to the right conclusion and I would dismiss the appeal with costs.
As Nyarangi JA also agrees the appeal is ordered to be dismissed with costs.
There seems no reason in principle to restrict section 109 to the cases where the transferee's lease complies with all formalities, denying the transferee of the possibility of a tenancy on the basis of constructive possession and payment of rent.
The defendant having paid no rent to anyone is liable to pay rent to the plaintiff for use and occupation.
whereas the agreement could not operate as a lease it could operate as an agreement inter parties which if followed by possession and payment of rent creates a tenancy from month to month
The action against the appellant was not in rem but an action in personam. No registered lease therefore was needed to affix the appellant with liability for rent for the flats occupied by it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WJ Blakeman Ltd v Associated Hotel Management Services Ltd [1985] KECA 9 (KLR)", Case Analysis (1985). Civil Appeal No 45 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/9/eng@1985-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.