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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent, holding under an unregistered agreement with the original landlord, was entitled to claim rent from the appellant company in occupation of the flats
- 2.Whether there was privity of contract or estate between the appellant and the respondent
- 3.Whether constructive possession together with payment of rent sufficed to create a monthly tenancy in the respondent and to bring the matter within section 109 of the Transfer of Property Act
- 4.Whether an estoppel arose preventing the appellant from denying liability to pay rent
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the lead judgment on the ambiguity of 'possession', holding the action was in personam and that the respondent acquired an enforceable interest by agreement and possession, including constructive possession, with the right to receive rent.
The respondent acquired an interest therein under an agreement enforceable by specific performance, and also by virtue of actual possession of the property though a part of it took the shape of constructive possessionp. 2
Wrote the judgment
Concurred, reviewing Souza Figueiredo and related authorities on unregistered agreements operating as agreements inter partes creating monthly tenancies through possession and payment of rent.
It was held that whereas the agreement could not operate as 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. 2
Wrote the judgment
Delivered a detailed judgment examining the Transfer of Property Act provisions, holding that a monthly tenancy may arise by constructive possession and payment of rent under section 109, and that the appellant was liable for rent for use and occupation.
In my opinion therefore, the learned judge came to the right conclusion in applying the provisions of the Transfer of Property Act to the circumstances of the case before him.p. 5
- 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)
Relief refused
#Setting aside of the High Court award of Kshs 55,000 as rent owed
The court affirmed that the respondent acquired the rights of the lessor, including the right to claim rent, and that the appellant was liable for use and occupation
Costs
The appeal was 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.
As Nyarangi, J A also agrees the appeal is ordered to be dismissed with costs.
Accordingly it is my view that the learned judge came to the right conclusion and I would dismiss the appeal 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.
Issues in the judgment
#Appellant is referred to inconsistently as 'Blakeman' in the title but 'WJ Blakeman Limited' in the body
Citation for Mlay v Phoneas is incomplete in the judgment
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.