Duale v Kapila (Civil Appeal No. 91 of 1952) [1952] EACA 316 (1 January 1952)

#### APPELLATE CIVIL

#### Before WINDHAM, J.

# MOHMUD DUALE, Appellant (Original Respondent)

v.

# S. R. KAPILA, Respondent (Original Applicant)

## Civil Appeal No. 91 of 1952

#### (Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant-No commencement of date of monthly tenancy-Validity of notice to quit—Premature application to Board.

On the landlord-respondent obtaining an eviction order against the tenant the latter appealed for the Board's decision.

It was argued for the appellant that there was no evidence as to date of commencement of the monthly tenancy, nor was there any admission on these points. A further argument was that when the application was filed there was no proof that the tenant had ceased to be a contractual tenant.

Held $(10-12-52)$ —(1) In the absence of proof of the commencement of the tenancy or by an admission in pleading or by counsel the notice to quit was invalid.

(2) It followed that the application to the Board on 15th August following a notice to quit dated 14th July was premature.

Appeal allowed.

$D. N.$ Khanna for appellant.

## Mackie-Robertson for respondent.

JUDGMENT.-It is unnecessary to consider more than two of the grounds of this appeal by a tenant against an eviction order made against him, for on those two grounds, considered together, he must succeed. These grounds are, first, that the notice to quit served on the tenant by his landlord was invalid, and secondly, that in view of its terms, the application to the Board was premature.

The invalidity of the notice to quit was both pleaded and argued before the Board. There was not a word in evidence as to the date of commencement of the monthly tenancy, or even as to the date when monthly payments of rent fell due or were made; nor was there any admission on any of these points. It is suggested for the landlord respondent that the fact of his original application to the Board having asked for "rent from 1st July, 1952, at Shs. 32/50 per month" affords presumptive evidence in the absence of any actual evidence on the point, that the tenancy commenced on the first of a month and the monthly periods ran from the first of each month. But even if these words were unambiguous with regard to the date of commencement of the tenancy and of the monthly periods, which they are not, they do not constitute evidence on the point. This must be established by actual evidence before the Board, or by admission in pleadings or by counsel. It was not so established.

The notice to quit was dated 14th July, 1952, and was in the following $terms: -$

"I hereby give you notice to terminate your tenancy (whether contractual or otherwise) as from the end of the month of July, 1952, or at the end of the period when your tenancy for the said month expires whichever is later."

The application to the Board for eviction of the tenant was filed on 5th August, 1952. It was thus premature. For if the monthly tenancy had commenced on any date between the 7th and the 30th or 31st of a month (and in the absence of any proof as to the date it may well have done so) then the application would have been filed before the lapse of 15 or more days dating from the notice to quit (that is, from 14th July) and terminating with the end of the current monthly period of tenancy, which in such a case would have occurred within the period 6th to 30th August. In brief there was no proof (or admission) that when the application was filed the appellant had ceased to be a contractual tenant. Therefore quite apart from any inherent defect or inadequacy in the notice to quit itself, the application was premature. For it is always open to a tenant to plead in his statement of defence (as he did here) that his contractual tenancy has not been determined; and the relevant date for this purpose must therefore be the date of the filing of the application and not (as it is for certain other purposes under the Act) the date of hearing before the Board. It must therefore be proved (or admitted) that at the date of filing the application the tenant was no longer a contractual tenant.

For these reasons the appeal is allowed and the order of the Board is set aside The appellant will have his costs here and below.