WJ BLAKEMAN LTD vs ASSOCIATED HOTEL MANAGEMENT SERVICES LTD [1985] KECA 128 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even unregistered lease agreements can create enforceable monthly tenancies, and occupants must pay rent for use and occupation.
What this practically means
#Executive summary
#Key legal issues
#Meaning of possession
Possession has no single precise definition and depends on context; both actual and constructive possession are recognised, and constructive possession sufficed for the respondent's tenancy
The court surveyed English and Indian authority showing 'possession' is ambiguous and context-dependent. It recognised actual and constructive possession and held that the respondent, though unable physically to occupy flats held by the appellant, took constructive possession of them and enjoyed the benefits of ownership including the right to receive rent.
Effect of an unregistered lease agreement
An unregistered agreement for a lease exceeding one year is void as a lease but operates as an agreement inter partes, creating a monthly tenancy where followed by possession and payment of rent
Following Souza Figueiredo, the court held that although the agreements could not operate as leases for want of registration under section 107 of the Transfer of Property Act, the parties held over as monthly tenants under section 116, and personal covenants and implied periodic tenancies survived, binding the parties as between themselves.
Transfer of lessor's rights under section 109
The original landlord's transferee, taking constructive possession of the occupied flats, acquired all the rights of the lessor including the right to claim rent from the occupying tenant
The court held that monthly periodic tenancies are leases under section 105 and continued when the landlord agreed with the respondent. A transferee of the reversion under concurrent leases need only take constructive possession of the portions occupied; the appellant knew of the transaction and was liable to pay rent to the respondent for use and occupation.
Legal principles established
#- An unregistered agreement to lease cannot operate as a lease but can operate as an agreement inter partes which, if followed by possession and payment of rent, creates a tenancy from month to month
- A tenancy may arise by constructive possession and payment of rent; section 109 of the Transfer of Property Act is not restricted to cases where the transferee's lease complies with all formalities
- An action for rent founded on occupation may be an action in personam not requiring a registered lease
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay the costs of the appeal
- On appeal from
- High Court at Mombasa
- Civil Case No 405 of 1980
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (appeal as of right on the decision of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "WJ BLAKEMAN LTD vs ASSOCIATED HOTEL MANAGEMENT SERVICES LTD [1985] KECA 128 (KLR)", Case Analysis (1985). Civil Appeal No 45 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/128/eng@1985-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.