Mnazi Moja Estates Ltd v Ambalal Mistry & 5 others [1986] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a landlord's silence is not refusal of lease consent, and tenants must follow proper procedure before suing.
What this practically means
#Executive summary
#Key legal issues
#Whether the landlords unreasonably refused consent to the assignment
No unreasonable refusal was established; there was no clear refusal before the application, the identity and authority of the person allegedly refusing was unclear, and the only reason given (a wish to purchase the property) emerged only at the hearing.
The respondents applied by letter on 7 October 1985 but never received a positive or negative reply. The affidavits alleging refusal by 'a director' gave no details of who refused, when, or what was said, and the director authorised to deal with the matter (Mr Githere) denied any approach. The reason of wishing to purchase was revealed for the first time at the hearing and did not amount to coercion of the kind in Bates v Donaldson or Re Winfrey & Chatterton's Agreement.
Whether a reversioner's desire to purchase the lease is a valid reason for withholding consent
The English authorities establish only that a prior offer to buy used to coerce the tenant is not a valid reason; the Court declined to hold that a desire to purchase can never constitute a valid reason in law.
Bates v Donaldson and Re Winfrey & Chatterton's Agreement both involved prior offers by the reversioner to buy the lease, aimed at coercing sale and obtaining possession. No such prior offer existed here. The Court was not satisfied the refusal (if any) was designed to coerce the lessees into selling, and refused to lay down an absolute rule that a desire to purchase is always invalid.
Procedural competence of the originating summons
Order XXXVI of the Civil Procedure Rules makes no provision for a declaration that consent to assignment was unreasonably refused; the originating summons was not properly grounded and such matters should be commenced by suit (plaint).
The summons was brought under Order XXXVI rule 3A and section 97 of the Civil Procedure Act; rule 3A concerns mortgage disputes and section 97 no longer exists, having been replaced by section 3A on inherent jurisdiction. None of the rules of Order XXXVI (rules 1, 2, 3, 4, 5 or 5A) covers a declaration of unreasonable refusal of consent. A question of jurisdiction must be taken up whether or not raised below.
Fairness of the hearing in the High Court
The hearing was rushed; directions for the trial of issues arising from the affidavits should have been given under Rule 9 of Order XXXVI, and the appellant was denied a proper opportunity to be heard.
The matter was stood over to 14 February 1986 and heard the same afternoon on affidavit evidence, with the appellant's advocate instructed only that morning and compelled to file an affidavit the same morning. Rule 9 of Order XXXVI was not complied with; directions as to the trial of issues, and whether rule 10 should convert the summons into a suit, should have been given.
Legal principles established
#- A desire by the reversioner landlord to purchase the lease himself is not, as a matter of law, never a valid reason for refusing consent to assignment.
- A lessee must apply for consent to the right person, give the lessor reasonable time to consider the request, and may only then seek a declaration that a refusal (or protracted silence) is unreasonable.
- Where a question of jurisdiction arises, the Court of Appeal must take it up whether or not the point was raised below.
- Originating summons procedure is inappropriate where the issues raise complex and contentious questions of fact.
Court orders
#- 1.Appeal allowed
- 2.Order and decree of the High Court set aside
- 3.Proceedings remitted to the High Court to hear and determine the case according to evidence, which should be oral evidence (Hancox and Gachuhi Ag JA); Platt Ag JA would strike out the proceedings as incompetent and direct that a suit be brought
- 4.Costs of the appeal awarded to the appellant
- 5.Each party to bear their own costs of the High Court proceedings
- On appeal from
- High Court of Kenya
- Originating Summons (Mombasa)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mnazi Moja Estates Ltd v Ambalal Mistry & 5 others [1986] KECA 34 (KLR)", Case Analysis (1986). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/34/eng@1986-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.