Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 45 of 1984· [1985] KECA 128 (KLR)

WJ BLAKEMAN LTD vs ASSOCIATED HOTEL MANAGEMENT SERVICES LTD [1985] KECA 128 (KLR)

Court of Appeal
8 May 1985
3,902 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

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

#
The Court of Appeal at Nairobi (Madan, Nyarangi JJA and Platt Ag JA) dismissed this appeal against a High Court (Mombasa, Bhandari J) decision awarding the respondent company Kshs 55,000 as rent. The dispute concerned the Cowrie Shell Apartments, where the appellant had leased flats from the owner, Mr Kahara, under unregistered agreements, and Kahara later 'leased' the whole premises to the respondent under an unregistered three-and-a-half-year agreement. The respondent took possession in June 1978, including constructive possession of the six flats still occupied by the appellant, but the appellant refused to pay rent to anyone. The central issues were the want of privity of contract and estate, the effect of non-registration, and whether constructive possession sufficed. The court held that possession is context-dependent, and that an unregistered agreement 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. A transferee of the landlord's interest under section 109 of the Transfer of Property Act need take only constructive possession of occupied portions to acquire the lessor's rights, including the right to claim rent. The action being in personam, no registered lease was needed to affix liability. The appeal was dismissed with costs.

Key legal issues

#
01

Meaning of possession

Holding

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

Reasoning

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.

p. 1
02

Effect of an unregistered lease agreement

Holding

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

Reasoning

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.

p. 2
03

Transfer of lessor's rights under section 109

Holding

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

Reasoning

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.

p. 5

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. 1.The appeal is dismissed
  2. 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.