Kenya Broadcasting Corporation v Ann Muthoni Kibiro & another [2015] KECA 474 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a tenant who stays past the lease expiry, and uses utilities without opening its own accounts, must pay monthly rent and utility bills in full.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether any rents were owed after the expiry of the lease on 31st March 2002
- 2.Whether the appellant was liable to pay for the water consumed during the tenancy
- 3.Whether notice under section 46(a) of the Kenya Broadcasting Corporation Act was required before suit, including by the 2nd respondent
- 4.Whether the respondents were obliged to file a notice of appeal or a notice to affirm under Rule 94 of the Court of Appeal Rules
Key legal issues
#Rent liability after expiry of the lease where the tenant holds over
The appellant, having given notice to vacate by 31st March 2002 but remaining in occupation until 25th November 2002, became a month-to-month tenant and was liable for eight months' rent at Sh.458,816/40 per month; section 14 of the Distress for Rent Act did not apply because the landlady acquiesced.
The court found it was the appellant who delayed handing back the premises. The landlady took no steps to recover possession and by her letter gave the appellant time to vacate, which amounted to acquiescence. Double rent under section 14 presupposes the tenant quitting at the time specified without delivering possession, which was inconsistent with the acquiescence found. The court therefore invoked sections 106 and 116 of the Transfer of Property Act to hold the appellant liable on a month-to-month basis, despite the pleading for mesne profits, since relief proved by evidence should not be denied for want of pleading.
Liability for water consumed during the tenancy absent privity between the appellant and the account holder
The appellant was liable for Sh.2,729,921/15 on account of water consumed, there being an implied undertaking to pay arising from its breach of clause 4 of the lease by failing to open its own water accounts.
Clause 4 of the tenancy agreement made opening and maintaining water and electricity accounts the responsibility of the appellant. It never opened accounts, so the meters could not be installed and its staff consumed water through the account opened by the 2nd respondent. Bills were forwarded to and received by the appellant, which never returned or disputed them, and its own witness conceded the obligation in cross-examination. Privity of contract was irrelevant because the liability rested on consumption and the implied undertaking, not on the lease. The trial judge's scrutiny of the bills was affirmed.
Applicability of section 46(a) of the Kenya Broadcasting Corporation Act to a tenancy dispute
The statutory notice requirement did not apply because the suit did not concern acts done in execution of the Corporation's statutory functions under section 8; in any event notice was served on 17th July 2002, and the 2nd respondent did not need to issue a separate notice.
Section 46 governs actions commenced against the Corporation in respect of acts done in execution of its statutory duty. Renting staff accommodation is a private-law undertaking outside the eleven functions listed in section 8. The court also noted that a notice dated 17th July 2002 was served on the Managing Director before the suit filed on 18th October 2002, that the issue was never among the agreed grounds for determination in the High Court, and that the 2nd respondent, whose involvement flowed from the water account he opened, need not have issued his own notice.
Effect of a respondent's stale notice of appeal and absence of a notice to affirm under Rule 94 of the Court of Appeal Rules
A respondent's notice of appeal not followed by a record of appeal falls by the wayside or is deemed withdrawn and has no effect; Rule 94 notice to affirm is required only where the respondent contends the decision should be affirmed on grounds other than those relied on below.
The appellant argued that the respondents' unwithdrawn notice of appeal demonstrated a concession that the judgment was wrong and that no notice to affirm was filed. The court found the notice of appeal had no effect either way. As to Rule 94, the respondents did not seek to affirm on other or additional grounds, so no notice was necessary. Both grounds were dismissed.
Legal principles established
#- On a first appeal, the appellate court is enjoined to approach the matter as if it were a fresh trial, reviewing the recorded evidence and reaching its own conclusions on the trial judge's findings.
- Where a lease obliges a tenant to open and maintain utility accounts and the tenant fails to do so while continuing to consume the utility through accounts in the landlord's name, the tenant is taken to have given an implied undertaking to pay for that consumption.
- Section 46 of the Kenya Broadcasting Corporation Act, requiring prior written notice before legal proceedings, applies only to acts done by the Corporation in execution of its statutory functions under section 8, and does not extend to its undertakings as a tenant.
- A tenant who gives notice to quit but remains in occupation with the acquiescence of the landlord, who takes no steps to recover the premises, becomes a month-to-month tenant liable to pay monthly rent notwithstanding that mesne profits were pleaded.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The judgment of the High Court (Njagi, J.) dated 26th October 2004 directing payment of Sh.3,670,531/20 as rent for eight months and Sh.2,729,921/15 on account of water consumed is affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1133 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules
Relief refused
#Appellant's plea that section 14 of the Distress for Rent Act (double rent) applied rather than month-to-month rent
The appellant gave notice to vacate but did not leave on the stated date and the landlady took no steps to recover the premises, so she acquiesced in continued occupation; the appellant became a month-to-month tenant
Appellant's contention that no separate statutory notice under section 46(a) of the Kenya Broadcasting Corporation Act was issued by the 2nd respondent
Renting accommodation for staff does not fall within the appellant's functions under section 8 of the Act, notice was in any event served on 17th July 2002, and the issue was not among the grounds filed for determination in the High Court
Appellant's complaint that the respondents filed a notice of appeal not followed by a record of appeal and did not file a notice to affirm under Rule 94
The notice of appeal had fallen by the wayside or was deemed withdrawn and had no effect; the respondents did not seek to affirm on grounds other than those relied on by the High Court
Costs
The appeal was dismissed with costs to the respondents: "All in all, we come to the conclusion that this appeal be and is hereby dismissed with costs."
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.
All in all, we come to the conclusion that this appeal be and is hereby dismissed with costs.
This being the first appeal, we are enjoined to approach it as if it is a fresh trial whereby we review the recorded evidence and conclude by agreeing, or not agreeing with the trial judges' findings
there was an implied undertaking on the part of the appellant that it would pay for that water.
None of the functions the appellant does in pursuant of its Act, includes its undertakings as a tenant or other.
the appellant became a month-to-month tenant after 31st march, 2002 and was therefore obliged to pay the monthly rent of Sh.458,816/40.
Issues in the judgment
#The judgment variously renders the monthly rent figure as Sh.458,816/40, Sh.458.816/40 and Sh.458,861/40, and renders the 2nd respondent's surname variously as Kibiro, Kabiro and Gathoga, creating minor internal inconsistencies.
The judgment refers once to the appellant as the 2nd appellant, although there is only one appellant, and refers to the 2nd respondent as 2nd appellant in error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Broadcasting Corporation v Ann Muthoni Kibiro & another [2015] KECA 474 (KLR)", Case Analysis (2015). Civil Appeal No. 61 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/474/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.