Wakilii

Sagaaf v Khaku and Another (Civil Appeal No. 45 of 1955)

East African Court of Appeal · [1955] EACA 314 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya reversing Rent Control Board's possession order
Decision
Landlord granted possession of both flats subject to compliance with Board conditions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that in determining reasonableness under rent restriction legislation, a court has the widest discretion to consider every factor and circumstance likely to be affected by the making of a possession order, including a landlord's interest in supervising reconstruction work. The Court further held that while an appellate Judge has discretion to allow new points of law on appeal from a Rent Control Board, such discretion should not be exercised where the point was not raised before the Board and the tenant's conduct indicated acceptance of the matter in issue.

Outcome

Landlord granted possession of both flats subject to compliance with Board conditions

Facts

The appellant landlord owned premises consisting of four flats in Mombasa subject to rent restriction legislation. He applied to the Coast Rent Control Board for possession orders against all four tenants, stating he required two of the flats for personal occupation to supervise reconstruction work on the property. Two tenants consented to vacate. The Board granted possession orders for the remaining two flats occupied by the respondents, finding the landlord's reasons reasonable and that alternative accommodation offered was reasonably equivalent. The respondents appealed to the Supreme Court, which reversed the Board's decision on two grounds: that the Board improperly considered factors not strictly relevant to residential occupation, and that the first respondent's tenancy had not been validly determined by notice to quit. The landlord appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether the Rent Control Board erred in considering the landlord's desire to supervise reconstruction work when assessing reasonableness under section 16(1)(e)(i) of the Increase of Rent (Restriction) Ordinance.
  2. Whether the appellate Judge properly exercised discretion in allowing a new point of law (validity of notice to quit) to be raised for the first time on appeal from the Rent Control Board.

Orders

  • Appeal allowed.
  • Order of the Rent Control Board dated 15 May 1954 confirmed.
  • Landlord to have possession of both flats on 30 September 1955, subject to compliance with conditions laid down by the Board.
  • Costs of the appeal awarded to the appellant, including costs of the appeal in the court below.

Rules and key headnotes

Landlord and Tenant — Rent Restriction — Test of Reasonableness — Scope of Factors to be Considered
In determining whether it is reasonable to make a possession order under rent restriction legislation, a court has the widest discretion to consider every factor and circumstance likely to be affected by the making of the order, including factors affecting the landlord's interests even if somewhat remote from strictly residential considerations.
Landlord and Tenant — Rent Restriction — Reasonableness — Landlord's Interest in Supervising Reconstruction
A landlord's desire to occupy rent-restricted premises in order to be on site to supervise reconstruction work is a proper factor for a Rent Control Board to consider when assessing reasonableness under section 16(1)(e)(i) of the Increase of Rent (Restriction) Ordinance, as the landlord's interests in expedition and economy of the work are definitely involved.
Appeals from Rent Control Board — New Points of Law — Exercise of Discretion
An appellate Judge has discretion to allow a new point of law to be taken on appeal from a Rent Control Board, but before exercising that discretion the Judge should satisfy himself that it is a point of real substance and not merely a device raised by the tenant at a late stage to avoid the Board's order.
Appeals — New Points — Conduct of Party and Pleadings
Where a tenant's reply to a landlord's application is ambiguous as to whether a valid notice to quit was served, and the tenant's subsequent conduct before the Board (including failure to raise the point and fighting the case on other grounds) indicates acceptance that the tenancy was validly determined, the tenant should not be permitted to raise the validity of the notice as a new point for the first time on appeal.
Appeals — Fraudulent Delaying Tactics — Protection Against Abuse
To allow a tenant to raise a new point concerning validity of notice to quit at a late stage on appeal, unaccompanied by any affidavit and in circumstances where the point was not taken before the Board despite being conclusive if good, opens the door to fraudulent delaying tactics by tenants struggling to retain possession.

Legislation cited (2)

  • Increase of Rent (Restriction) Ordinance s.16(1)(e)(i)
  • Rent Restriction Ordinance s.7

Cases cited (13)

  • Cresswell v Hodgson (1951) 1 AER 712
  • Popatlal Padamshi v Shah Meghji Hirji (19 EACA 15)
  • Wilson v United Counties Bank Ltd [1920] AC 102
  • Summers v Donohue (1945) 1 AER 599
  • Shah Ramji Kanji v Maherali Hirji & Co (Civil Appeal No. 94 of 1953)
  • Sims v Wilson (1946) 2 AER 261
  • Robinson v Donovan (1946) 2 AER 731
  • Chronopolous v Kassim Meia (21 EACA 177)
  • Smith v Penny (1946) 2 AER 672
  • Neville v Hardy [1921] Ch 404
  • Aboobaker Noor Mohamed Bhokharia v Haji Yakoob (Civil Appeal No. 48 of 1950)
  • Benninga v Bijstra [1946] KB 58
  • Aitken v Show (1933) SLT 27

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Sagaaf v Khaku and Another (Civil Appeal No. 45 of 1955) [1955] EACA 314 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.