East Africa: Court of Appeal

You are here:  SAFLII >> Databases >> East Africa: Court of Appeal >> 1970 >> [1970] EACA 5

| Noteup | LawCite

Somani's v Shirinkhanu s/o Javer Karmali NO (Civil Appeal No. 10 of 1970) [1970] EACA 5 (16 July 1970)

Download original files

RTF format

Bookmark/share this page

Bookmark and Share

IN THE COURT OF APPEAL FOR EAST AFRICA

AT MOMBASA


(Coram: Duffus, P., Spry, V-P., and Lutta, J.A)


CIVIL APPEAL NO. 10 OF 1970


BETWEEN


SOMANI’S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANTS


AND


SHIRINKHANU s/o JAVER KARMALI as trustee and guardian of Amirali, Kabirudin, Sultanali

and Farida, the children of the late Mohamed Akbar Kassam Khimji, deceased . . . . .RESPONDENT


(Appeal from the judgment and decree of the High Court of Kenya at Mombasa (Harris, J.) dated 22nd December, 1969, in Civil Suit No. 182 of 1966



16th July, 1970.


The following Judgments were read:-


LUTTA, J.A.


The appellant (the defendant in the High Court) was in occupation of a shop as a monthly tenant prior to 1966 and was served by the respondent (the plaintiff in the High Court) with a notice to quit

effective on 30th April, 1966. The appellant did not quit and consequently the respondent filed the suit on 10th June, 1966, claiming vacant possession of the suit premises, arrears of rent in the sum of shs. 1,150/- for the month of April, 1966 and mesne profits from 1st May, 1966, until actual possession at the rate of shs 1,600/- per month. On 10th May, 1966, the Landlord and Tenant (Shops, Hotels, and Catering Establishments) (Commencement) Order 1966 (L.N. 126 of 1966) (hereinafter referred to as the "Order") made on 6th May, 1966 under section 1(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 1965 (No. 13 of 1965 and now Cap. 301 of the L3.wS of Kenya) (to which I shall, hereinafter refer as "the Act") was published in the Kenya Gazette Supplement No. 40, declaring that the Act "shall be deemed to have come into

operation on 3rd May, 1966" in respect of Mombasa area.


The Written Statement of Defence was not filed until 6th September, 1966 and on 27th September, 1966, there was published in the Kenya Gazette Supplement No. 83, Legal Notice No. 283 of 19th September, 1966 (hereinafter referred to as the ‘The Legal Notice’) in which, by exercising powers conferred on him by section 1 of the Act, the Minister appointed inter alia, the following dates,

"(a) the 3rd May, 1966 as the date on which the Act shall come or be deemed to have come into operation in the Mombasa Municipality; and


(b) the 1st January, 1966 as the date on which tenancies are required to have

been subsisting for the purposes of subsection (2) of section 1 of the Act in the Mombasa Municipality."



In the Legal Notice the Order was revoked. At the hearing of the suit the only issue argued was whether the appellant was entitled to the protection of the Act and whether the court had jurisdiction to hear the suit.

However, in his judgment, the learned judge considered also the question as to whether the Act should be accorded retrospective effect. He decided that the appellant was not entitled to the protection of the Act and thus the court had jurisdiction to hear the suit and also that the Act operated retrospectively as the dates on which the tenancy was required to have been subsisting in order to enjoy the protection of the Act preceded the date of the coming into operation of the Act. Against that decision the appellant lodged the appeal. Mr. Talati for the­ appellant submitted that the learned judge erred when he held that the Act did not apply to the pending litigation. Reduced to its simple terms Mr. Talati's argument was that the suit was not pending on 3rd May 1966 when the Act was deemed to have become operative to Mombasa and therefore the Act should have applied to the suit which was filed on 10th June, 1966.


For this proposition he relied on the case of Govindji Poptlal v. Premchand Raichand (1963) E.A. 69. He also argued that as the Act was intended to give protection to the tenants the provisions of

section 1(2) thereof must be construed to have a retrospective effect. He relied on the case of Karmali v. Mulla (1967) E.A. 179. He submitted that the term "tenant" as defined in the case of Remon v. City of London Real Property Co. Ltd. 1921) I K.B. 49 should be applied in the instant case. Mr. Wilkinson for the respondent applied for leave to file and argue a cross-appeal that the Minister's order (The Lega1 Notice) is ultra vires and thus a nullity in so far as it purports to apply the Act to Mombasa as from 3rd May, 1966. We granted leave for Mr. Wilkinson to argue that point.

He contended that the Act did not affect the right of action by the landlord against a person in occupation although it was intended to protect tenants and that as the appellant's tenancy came to an end before the Act was brought into force, that is, on 3rd May, 1966, there was no protection for the appellant in the Act.


Mr. Wilkinson, referring to the case of Govindji Potlal v. Premchand Raichand (Supra) pointed out that that case was distinguishable from the instant case in that the Act does not have similar provisions to those contained in the Land Titles (Amendment) Ordinance, 1959 (No. 24 of 1959), which was the subject of consideration in that case, and therefore the Act cannot be given a retrospective effect. He submitted that a statute is not given retrospective effect unless it is expressly provided therein or unless it follows by necessary implication; further that there is nothing in the Act to make it retrospective and therefore the Minister should not have made the Act retrospective. He argued that the Legal Notice was wrong as it purports to make retrospective appointments as to dates. He also referred us to the case of T. K. Musaliar v. Venkatachalam Potti-­ 1 AIR 1956 S. C. 246 article 38 at page 258. With respect I am not at all inclined to follow that case. I think it is necessary to deal with Mr. Wilkinson's submissions on the question of the Lega1 Notice being ultra vires section 1(1) of the Act first because if they are upheld, there would be no need to consider the grounds of appeal. The validity of the Act itself is not here being canvassed nor is the Minister's statutory authority to make appointments as to dates in doubt. The question here is whether the Minister has power to make retrospective appointments as to dates under section 1(1) of the Act, which is the commencement section, and reads as follows:

"This Act may be cited as the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 1965, and shall come into operation on such date as the Minister may by notice in the Gazette appoint: Provided that the Minister may appoint dif­ferent dates for different areas of Kenya, and may by notice in the Gazette exempt any area of Kenya from the operation of this Act."


Looking at the general scope and purview of the Act, it is clear that it is intended to protect persons who are tenants or in occupation of shops, hotels and catering establishments as defined in the Act, by reason of a lease or under lease, agreement or by operation of law. The words "shall come into operation" which appear in section 1(1) of the Act indicate the prospective nature of the Act. That is, those words show that the Act was intended to operate prospectively and thus are ap­propriate to that object.


However, the words "shall be deemed "to have come into operation" which appear in the Legal Notice but which are not in section 1(1) of the Act do suggest that the Act was intended to operate retrospectively. The question then arises as to whether Parliament, in section 1(1) of the Act, has sufficiently expressed that intention. If Parliament intended the Act to apply retrospectively, it would have expressly said so in that section or in any part of the Act, or the words "shall be deemed to have come into operation" or words to that effect would have been used therein. The absence of such words in section 1(1) or in any part of the Act seems to me to militate against a retrospective operation of the Act and against the general principle that a statute is not to be construed so as to have a retrospective operation unless its language is such as plainly to require that construction - see Lauri v. Renad - 1892 - 3 Ch. D. 403 at page 421 and West v. Gwynne­ 1911 2 Ch. 15.


I think the words "shall come into operation on such date as the Minister may, by notice in the Gazette, appoint" ought to be construed as being applicable to future dates only if the rule that an Act of Parlia­ment is generally to be construed as being prospective and intended to regulate the future conduct of persons is still a sound guide for purposes of construing an Act of Parliament. The only exception is, of course, where Parliament intends to affect past conduct or a past state of circumstances, in which case it expressly so provides in an Act. In my view these considerations provide sufficient reason for limiting the operation of, and holding that, the words "shall come into operation…" in section 1(1) of the Act are intended to apply, to future dates as opposed to past dates.

The words "shall be deemed to have come into operation “would not only be appropriate but necessary in section 1(1) of the Act if Parliament intended the Act to operate retrospectively.


It seems to me that the Minister under section 1(1) of the Act can only make appointments as to a future date and not a past date. Since section 1(1) of the Act does not confer on the Minister power to apply the Act retrospectively, can it be said on general pri­nciples that from the subject-matter or from the wording of the Act, it ought to be held to operate retrospectively? The intention to this effect can only be gathered from the Act as a whole. The Act is in­ tended primarily to protect tenants. It lays down tenants' rights vis­ a-vis those of their landlords. The general rule of law is that unless there is a clear indication either from the subject-matter or from the wording of an Act of Parliament, that Act should not be given a retros­pective construction - see Municipality of Mombasa v. Nyali Ltd. {1963) E.A. 371 at pages 374 and 375. I cannot find anything or a provision in the Act which indicates that it should be given retrospective operation. The appellant was served with a notice to quit effective on 30th April, 1966 and when he failed or refused to quit the respondent filed the suit on 10th June, 1966, claiming vacant possession from 1st May, 1966.


What was the effect of the Legal Notice on the respondent's rights? The res­pondent had, for example, already accrued to her the right of action against the appellant. By virtue of the Legal Notice she was required to comply with the provisions of sections 4 and 7 of the Act (dealing with

the "Notice of termination or alteration of terms of tenancy" and "Grounds on which landlord may seek to terminate tenancy" respectively. By reason of the Legal Notice the respondent was clearly prejudiced ­ her rights were affected adversely. In my view to hold the Act retros­pective would be to deprive her of a right which she had actually ac­quired, and on the authority of the Municipality of Mombasa v. Nyali Ltd. (Supra) Parliament's intention to apply the Act retrospectively and thus affect the respondent's substantive rights has not been manifested in the Act.


In my view the Legal Notice is ultra vires section 1(1) of the Act and is therefore null and void to the extent that it purports to apply the Act to Mombasa Municipality with effect from 3rd May, 1966. For these reasons I would dismiss this appeal in respect of vacant possession and the award of costs and interest on the decretal amount but allow it in respect of mesne profits, which will be referred back to the High Court for further investigation and for an award for such a sum as the respondent may be entitled to with power for the High Court to make any further order for costs in respect thereof. Costs of the appeal and of the cross-appeal except those relating to the question of mesne profits to be the respondent's. I would grant a certificate for two counsel.


With regard to Civil Appeal No. 11 of 1970 - Badar Stores v. Shirinkhanu d/o Javer Karma1i, it was agreed that the order in respect thereof will be the same as the order in this appeal and I would accord­ingly make the same order in the said Civil Appeal No. 11 of 1970. It is therefore unnecessary to consider the substantive issue raised in that appeal.



DUFFUS, P.


I have had the advantage of reading the judgment of Lutta, J.A. I agree that section 1, of The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap.301 does not confer any power on the Minister to bring the Act into operation retrospectively and accordingly that Legal Notice No.283 dated 19th September, 1966 is ultra vires section 1 of the Act in so far as it purports to apply the Act to Mombasa with effect from the 3rd May, 1966. This would also apply to Legal Notice No. 126 of 1966, dated 6th May, 1966 in so far as it also purported to apply the Act to Mombasa as from the 3rd May, 1966. The result is that the appellant's tenancy was terminated by the notice to quit, expiring on the 30th April, 1966 and that the tenancy had ceased to exist on the 1st May, 1966.


The appellant then became a trespasser and the respondent acquired the right to immediate possession of his premises. I agree therefore both for the reasons stated by the learned trial judge and

those set out by Lutta, J.A. that the provisions of The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap.30l do not apply to this case and I agree that the appeal be dismissed in so far as the order for possession is concerned. The advocates for both parties, however, agree that the trial judge erred in ordering the payment of mesne profits at the rate of shs. l,600/- per month and they agree that the matter must be referred back to the High Court for further investigation and to award such sum as the plaintiff/respondent may be entitled to but that this order would not affect the costs of this appeal.


I agree with the order proposed by Lutta, J.A. and as the Vice-President also agrees, it is ordered that the appeal be dismissed in so far as the order for vacant possession and the award of costs and interest are concerned but allowed in respect of the order for mesne profits. The order for mesne profits is set aside and the matter is referred back to the High Court for further investigation and for the award for such a sum as the plaintiff may be entitled to with power for the High Court to make any further order for costs on this question. Costs of the appeal and of the cross-appeal except for costs on the question of mesne profits will be the respondent's. We grant a certificate for two counsel.


It was agreed that the order on the appeal in Civil Appeal No. 11 of 1970 will be the same as the order made on this appeal and accordingly we now make the same order in Civil Appeal No. 11 of 1970.



SPRY, V-P.


I am in complete agreement and there are only two points on which I would briefly comment. First, section 28 of the Interpretation and General Provisions Act (Cap. 2) provides, subject to certain qualifications, that:

Any subsidiary legislation may be made to operate retrospectively to any date, not being a date earlier than the commencement of the written law under which such subsidiary legisla­tion is made,"


"and under section 2­-

“’subsidiary legislation' means any legislative provision…made in exercise of any power in that behalf conferred by any written law, by way of…notice…or other instrument. "


A definition in section 2 only applies, of course, "except when there is something in the subject or context inconsistent with such construc­tion or interpretation". In my view, the wording of section 28 is clearly inappropriate to a notice bringing an Act into operation. More­ over, I cannot think that it was the intention of the legislature that statutes should be brought into operation with retrospective effect, except where it expressly so provides, since this might have incalculable effects on vested rights. I would hold therefore that section 28 has no application. Secondly, we were referred to the Indian case of T.K. Musaliar v. Venkatachalam A.I.R. 1956 SC 246. We are not, of course, bound by that decision and I would only say, with respect, that I would not be prepared to follow it.

9