Page 260 of [1968] 1 EA 258 (HCU)

Jivraj v Devraj
[1968] 1 EA 263 (CAN)

Division: Court of Appeal at Nairobi

Date of judgment: 31 January 1968 Case

Number: 48/1967 (54/68)
Case Number: 48/1967 (54/68)
Before: Sir Charles Newbold P, Sir Clement de Lestang V-P and Spry
JA
Sourced by: LawAfrica
Appeal from: High Court of Kenya – Chanan Singh, J
[1] Rent Restriction – Recovery of possession – Increase of Rent Restriction Act 1959; Rent Restriction
(Amendment) Act 1966 – Tenancy terminated and proceedings for possession filed before amending Act
came into force – Whether Act retrospective.
[2] Stare decisis – Court of Appeal – Whether court should apply English Court of Appeal decision
even if wrong – Decision on property rights followed for many years.
[3] Statute – Interpretation – Retrospective effect of amendment – Pending legal proceedings –
Increase of Rent Restriction Act 1959, as amended by Rent Restriction (Amendment) Act 1966, ss. 10 (2)
and 13
(1) (2) – Interpretation and General Provisions Act, s. 23 (3) (K.).

Editor’s Summary

The plaintiff/appellant let his premises in Nairobi in 1960 to the defendant/respondent on a monthly tenancy,
which was duly determined by a notice to quit effective on June 30, 1966. The defendant did not quit and
on November 23, 1966, the plaintiff filed suit, claiming (inter alia) possession and mesne profits. On
December 20, 1966, the Rent Restriction (Amendment) Act 1966 came into force, and brought the premises
within the Rent Restriction Act. At the trial the sole issue was whether the amending Act had retrospective
effect. The trial judge (relying largely on Remon’s case (1)) decided that the amending Act did operate
retrospectively so as to prevent the plaintiff from obtaining an order for possession. The plaintiff appealed.

Held – the amending Act did not have retrospective effect so as to prevent the plaintiff in pending
proceedings from obtaining possession from a person who had ceased to be a tenant before the amending
Act became effective. (Remon v. City of London Property Co. Ltd. (1) and Hutchinson v. Jauncey (5)
distinguished.)

Observations obiter on Remon’s case (1) disapproving (per Newbold, P., and Spry, J.A.) the decision in
that case but leaving open whether or not it should be followed.

Appeal allowed. Defendant ordered to deliver up possession within three months. Enquiry ordered as to
mesne profits and water and sweeper charges (in default of agreement).

Cases referred to in judgment:

(1) Remon v. City of London Property Co. Ltd., [1921] 1 K.B. 49.
(2) Durga Dass v. Gurdip Singh, Kenya High Court Civil Case No. 1327 of 1966 (unreported).

P
(3) Noronha v. Devji and Others, [1954] A.C. 49.
(4) Karmali v. Mulla, [1967] E.A. 179.

(5) Hutchinson v. Jauncey, [1950] 1 K.B. 574.

(6) Jonas v. Rosenberg, [1950] 2 K.B. 52.

(7) Prout v. Hunter, [1924] 2 K.B. 736.

(8) Leslie & Co. v. Cumming, [1926] 2 K.B. 417.

(9) Turner v. Baker, [1949] 1 K.B. 605.

(10) Dobson v. Richards, [1919] W.N. 166; 63 Sol. Jo. 663.

 age 264 of [1968] 1 EA 263 (CAN)

P
January 31, 1968. The following considered judgments were read.

Judgment

Sir Charles Newbold P: The appellant (hereinafter referred to as the plaintiff) is the owner of certain
premises in Nairobi. In 1960, by a verbal contract, he let those premises on a monthly tenancy to the
respondent (hereinafter referred to as the defendant). This tenancy was duly determined by a notice to quit
effective on June 30, 1966. The Rent Restriction Act (Cap. 296) (hereinafter referred to as the principal
Act) in force during the period of the tenancy did not apply to the premises. The defendant did not quit, so
on November 23, 1966, the plaintiff filed a suit seeking an order for delivery of the premises, mesne profits,
the payment of certain water and sweeper charges, and interest.

On December 20, 1966, the Rent Restriction (Amendment) Act 1966 (No. 37 of 1966 and hereinafter
referred to as the amending Act) came into operation and it brought the premises within the ambit of the
principal Act. In January, 1967, the defendant filed a defence claiming, inter alia, that the plaintiff was not
entitled to an order for possession by reason of the provisions of the amending Act. When the suit came on
for trial, by agreement the sole issue for decision by the court was “whether the suit premises are
retrospectively subject to the Rent Restriction Act 1959, as amended by the Rent Restriction (Amendment)
Act, No. 37 of 1966”. The terms of the orders which were to follow the answer to this issue were also
agreed. On the hearing of the appeal counsel for the defendant/respondent generously accepted that should
the appeal be successful the agreed form of order should include a reference to the amounts claimed in
respect of water and sweeper charges, as a reference to these charges had inadvertently been omitted from
the agreed form of order. It was also agreed by both counsel for the defendant/respondent and counsel for
the plaintiff/appellant that the issue agreed upon was to be regarded as posing the question whether the
amending Act applied so as to prevent the plaintiff from obtaining the order for possession which he sought
in his plaint.

The trial judge held that the amending Act operated retrospectively so as to prevent the plaintiff from
obtaining an order for possession. In coming to that conclusion he relied largely on the principle contained
in Remon v. City of London Property Co. Ltd. ([1921] 1 K.B. 49) and an unreported decision of Rudd, J., in
Durga Dass v. Gurdip Singh (Kenya High Court Civil Case No. 1327 of 1966). in which the principle in
the Remon case was also relied on. The trial judge, however, appreciated that there appeared to be, as he
put it, “no theoretically sound answer” to the objection to the amending Act applying to persons who had
ceased to be tenants before the commencement of that Act.

Counsel for the plaintiff/appellant submitted that both under the common law and under s. 23 of the
Interpretation and General Provisions Act (Cap. 2) pending legal proceedings are not affected by any change
in the law unless the amending Act shows, either expressly or by necessary implication, an intention that
the new provision should operate retrospectively and affect those proceedings; and he submitted that s. 13
of the amending Act showed a clear intention that those provisions should not operate retrospectively. He
also submitted that the judge, in arriving at his decision, had failed to consider that basic principle of the
law and the decision in Noronha v. Devji ([1954] A.C. 49), and had failed to appreciate that in the Remon
case there were no pending legal proceedings. Counsel for the defendant/respondent submitted that rent
restriction legislation was peculiar in that the law to be applied was the law at the date of the judgment and
not that at the date of the inception of the legal proceedings; and that this arose from the decisions that on
the commencement of any such legislation an ex-tenant in possession of premises to which the legislation

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applies acquires the
Page 265 of [1968] 1 EA 263 (CAN)

status of a statutory tenant and thus comes within the legislation, no matter when the legal proceedings were
instituted. Counsel for the defendant/respondent also referred to a decision of Wicks, J., in Karmali v. Mulla
([1967] E.A. 179), which though given under different legislation, followed the principle set out in the
Remon case (supra). He also submitted that s. 15 (4) of the principal Act, as amended by the amending Act,
showed a clear intention that the legislation should operate retrospectively.

As the plaintiff had given the defendant a valid notice to quit effective on June 30, 1966, after that date
the plaintiff was entitled under common law to bring an action for the recovery of the premises and the
ejectment of the defendant therefrom. When the plaintiff filed his plaint on November 23, 1966, s. 15 (1)
of the principal Act, which provides that “no order for the recovery of possession of any premises or for the
ejectment of a tenant therefrom shall be made unless . . .” certain conditions are fulfilled, did not apply as
the premises were not premises to which the principal Act applied nor was the defendant a tenant. When
the amending Act came into operation bringing premises of the class of which the defendant had previously
been the tenant within the ambit of the principal Act, the question which then arose was whether the
defendant, who was wrongfully in possession of these premises, could be regarded as being a tenant within
the meaning of the words quoted above in s. 15 (1). The principle contained in the Remon case ([1921] 1
K.B. 49) was that he could be. This in effect meant that the normal law to be applied in rent restriction cases
was that at the date of judgment and not that at the date when the legal proceedings were initiated. The
Remon case was a decision in 1921 of the English Court of Appeal, which decision was followed nearly
thirty years later by the English Court of Appeal in Hutchinson v. Jauncey ([1950] 1 K.B. 574). As the rent
restriction legislation of Kenya is similar in a number of respects to that of England and has the same basic
object, decisions of the English Court of Appeal are not lightly to be disregarded. On the other hand, as the
principle contained in the Remon case would seem to be contrary to a basic principle of the common law
and to the principle contained in s. 23 of the Interpretation and General Provisions Act, it is necessary to
examine the judgments in the Remon case in order to ascertain the reasoning which led to the enunciation
of the principle.

Where a person has ceased to be a tenant at a date prior to the date on which an amending Act comes
into operation normally that person could not be regarded as a tenant at the date of the amending Act. The
judges in the Remon case appreciated that it would be straining the meaning of the word ‘tenant’ to include
within it a person whose tenancy had been duly determined and who had no right to be in possession of the
premises at the date when those premises came within the ambit of the legislation but who nevertheless had
wrongly continued in possession. They considered, however, having regard to the object of the legislation,
which was the protection of certain tenants, that the intention of the legislature would be defeated unless
they gave to the word ‘tenant’ a strained and unnatural meaning. I consider that the judges failed to
appreciate that the amending Act would, without any straining of the meaning of tenant, have applied
naturally to all tenants, no matter whether the tenancy originated prior to or subsequent to the
commencement of the amending Act, so long as they were still tenants in the ordinary meaning of that word
when the amending Act came into operation. In other words, the judges, in order to protect a very small
class of persons, that is persons who if their tenancy had continued would have come within the protection
of the amending Act but whose tenancy had been lawfully determined prior to the operation of the Act and
who had wrongly continued in possession until the Act came into operation, gave a strained and unnatural
meaning to a word and thereby infringed rights which had crystallised before the legislation came into effect
without there being any
Page 266 of [1968] 1 EA 263 (CAN)

express or necessary implication in the legislation itself that such rights were to be affected. It cannot be
said that merely because the legislation was designed to protect a certain section of the community, that is
tenants, therefore there was a necessary intention that the legislation should have retrospective effect, as
otherwise all legislation designed to protect either a section of the community or the community as a whole
would, ipso facto, have retrospective effect. That is clearly not the law. I consider that the decision in the
Remon case ([1921] 1 K.B. 49) was a wrong decision and the reasoning on which it was based was false.

There is a principle of law, however, that where a court has interpreted the law in a certain manner,
particularly an interpretation which affects property rights, and that interpretation has been acted upon for
a considerable time, then that interpretation should not be departed from unless it is clearly wrong and gives
rise to injustice. The principle in the Remon case, has, so far as I am aware, been acted on for a considerable
time and in addition to the decision the subject of this appeal, we have been referred to two other decisions
of the Kenya High Court which have adopted the Remon principle. Thus unless it is possible to say that on
the facts of this appeal there are circumstances which enable the Remon case to be distinguished, it would
then arise for consideration whether, even if the decision in the Remon case was wrong, it would result in
more injustice to depart from that principle than to adhere to it.

Counsel for the plaintiff/appellant submitted that there was a clear distinguishing feature, which was that
in the Remon case there were no pending legal proceedings when the amending Act came into operation.
This, in my view, constitutes a clear distinction from the Remon case. It was, I have no doubt, this
distinguishing feature which enabled the Privy Council in Noronha v. Devji ([1954] A.C. 49) to hold on
appeal from this court that an amending Rent Restriction Act did not affect legal proceedings though this
court, following the principle in the Remon case, had earlier held that it did, without mentioning in its
judgment any of a large number of cases, including the Remon case, to which the Board had been referred
in the course of argument.

Though the Remon case can clearly be distinguished on that ground it is impossible to do the same with
Hutchinson v. Jauncey ([1950] 1 K.B. 574) to which both counsel for the defendant/respondent and counsel
for the plaintiff/appellant referred, as in that case there were pending legal proceedings. A careful
examination of the reason for the decision in that case, however, shows that while the court was following
the principle of the Remon case in the meaning of the word ‘tenant’, nevertheless, as there were pending
legal proceedings when the amending Act came into operation, the amending Act was only held to apply
because on the construction of certain sections of that Act it was held that there was a necessary intention
that the amending Act should have retrospective operation. Even, therefore, if this court were to hold,
following the Remon case, that the word tenant could include a person who had ceased to be one before the
Act came into operation, is there anything in the amending Act which shows that it was intended to affect
legal proceedings which had been instituted before the amending Act came into operation, as opposed to
those which were instituted subsequently? In my view, s. 13 (2) of the amending Act, which provides that
any obligation, proceeding or other matter pending under the principal Act before the commencement of
the amending Act shall be determined under the principal Act as if the amending Act had not been enacted,
shows a clear intention that the amending Act should not affect pending legal proceedings. It is true that the
proceedings in this case were not proceedings pending under the principal Act, but the necessary implication
from s. 13 (2) is that the amending Act is not to have retrospective operation. I accept counsel for the
defendant/respondent’s submission that s. 15 (4) of the principal Act shows an intention that section should
have retrospective operation, but whether that section
Page 267 of [1968] 1 EA 263 (CAN)

as amended should have retrospective operation is a matter, I think, to be determined by the amending Act
and not by the principal Act.

In my view, therefore, the trial judge was wrong in coming to the conclusion that the amending Act
prevented the plaintiff from obtaining an order for possession and he should have answered the issue in the
negative and made the agreed order. I would, accordingly, allow the appeal with costs, with a certificate for
two advocates. I would substitute for the judgment and decree of the High Court a judgment and decree
ordering the defendant to deliver up possession of the premises within three months from the date of this
judgment and ordering an enquiry as to mesne profits and water and sweeper charges, unless the parties
agree a figure as to such profits and charges, with interest thereon at court rates. I would also order that the
plaintiff would be entitled to the costs of the suit on the higher scale but I would not make an order for the
costs of two advocates. As the other members of the court agree it is so ordered.

Sir Clement De Lestang V-P: I have had the advantage of reading in draft the judgment prepared by my
lord President, and I agree with it but as we are differing from the decision of the trial judge I think I should
express my views in my own words. I will not repeat the facts which are fully set out in the judgment of my
lord President. I have not found this an easy case to decide but after much thought and careful consideration
of the able and exhaustive arguments of counsel on both sides I have come to the conclusion that its decision
depends on the correct answer to either of two questions; namely whether there was a “letting” within the
meaning of the Increase of Rent Restriction Act 1959 (hereinafter called the principal Act) at the time the
plaint was filed, and, if not, whether the Rent Restriction (Amendment) Act 1966 (hereinafter called the
amending Act) has retrospective effect. My reasons for arriving at this conclusion are briefly the following.
It is a well-known principle of law that, “in general, when the law is altered during the pendency of an
action, the rights of the parties are decided according to the law as it existed when the action was begun,
unless the new statute shows a clear intention to vary such rights”; Maxwell on Interpretation of Statutes
(10th Edn.), p. 221. This principle is embodied in our written law, namely s. 23 (3) of the Interpretation and
General Provisions Act (Cap. 2 of the Laws of Kenya) which provides, inter alia:
“Where a written law repeals in whole or in part any other written law, then, unless a contrary intention appears,
the repeal shall not –
(a) ...
(b) ...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any written law so
repealed; or
(d) ...
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
repealing written law had not been made.”

It has been held, however, by the English courts, notably in Jonas v. Rosenberg ([1950] 2 K.B. 52),
following Hutchinson v. Jauncey ([1950] 1 K.B. 574), that principle does not strictly apply in the case of
premises which are brought within and intended to be protected by rent restriction legislation. The reason
for this seems to me, as I understand the English cases, to be that the changes which are made from time to
time in that kind of legislation in England are intended
Page 268 of [1968] 1 EA 263 (CAN)
to be retrospective and, indeed, in Hutchinson’s case (supra), it was expressly held that the provisions upon
which the tenant relied for protection had retrospective effect. This explains in particular the decision in
Jonas v. Rosenberg (supra), one of the cases on which counsel for the defendant/respondent relies, in which
the law as it existed at the date of the judgment was applied although an amendment to the law was made
between the date of the trial and the delivery of the judgment.

To take a rent restriction case out of the application of the principle stated above it is nevertheless
necessary, and the English courts have so held in a number of cases, notably, Prout v. Hunter ([1924] 2
K.B. 736); Leslie & Co. v. Cumming ([1926] 2 K.B. 417); and Turner v. Baker ([1949] 1 K.B. 605), that
the question whether there is a “letting” within the properly applicable legislation must be decided on the
facts existing at the date of the issue of the plaint. This was accepted as being right in Hutchinson’s case
also and appears to me to have been applied by Lord Reading, C.J., in Dobson v. Richards ([1919] W.N.
166). In the latter case, although the action was filed after the enactment of the law bringing the premises
within the ambit of the rent restriction legislation, Lord Reading, C.J., said that it was said that the Act was
not retrospective but he had to look at the position at the date of the writ. He went on to say that at that date
there was a tenancy at sufferance and accordingly the tenant was protected.

In Noronha v. Devji ([1954] A.C. 49) the Judicial Committee of the Privy Council held that s. 13 (3) of
the General Clauses Ordinance of Kenya, which is substantially the same as s. 23 (3) of the Interpretation
and General Provisions Act, already referred to, was in accordance with the principle which I have
enunciated at the beginning of this judgment. It further held that the Increase of Rent (Restriction) Ordinance
1949, which had repealed and replaced previous legislation on the subject did not affect pending
proceedings since no contrary intention appeared in the Act.

Having thus stated, with clarity I hope, my reasons, I proceed to answer the two questions I have posed
above.

As regards the first, whether there was a “letting” under the relevant Acts at the time of the plaint, the
answer is plainly no. Until December 20, 1966, the premises in suit were not subject to control. Long before
that date the tenancy had been properly determined by a notice to quit and at the date of the plaint on
November 23, 1966, the tenant was not a tenant at all but a trespasser holding over against the will of his
landlord. There could not therefore be a “letting”, not even in the extended meaning given to that term in
Remon v. City of London Property Co. Ltd. ([1921] 1 K.B. 49), until the coming into force of the amending
Act on December 20, 1966.

As regards the other question, whether the amending Act operated retrospectively so as to protect the
ex-tenant, I can see nothing in that Act indicating, even remotely, a retrospective intent. On the contrary,
ss. 10 (2) and 13 (1) (2) appear to me to negative any such intention. The former refers merely to future
proceedings and the latter preserves pending proceedings under the principal Act. I doubt if s. 15 (4) of the
principal Act is truly retrospective. It is true that it applies to a limited number of orders made in the past
but its purpose is clearly I think to provide machinery for dealing with uncompleted matters in the future.
Incidentally the amending Act has made nonsense of s. 15 (4) of the principal Act in substituting “tribunal”
for “court” in “both places” in this section while “court” appears in three places. To make any sense it seems
to me that the substitution must apply to all three. Whether or not s. 15 (4) shows a retrospective intent it is,
however, in my view irrelevant for the decision of the present appeal. Neither the principal Act nor the
amending Act contain any reference,
Page 269 of [1968] 1 EA 263 (CAN)
either express or implied, to proceedings like the present which are not brought under the rent restriction
legislation but under the ordinary law of the land.

The learned trial judge relied entirely on Remon’s case. Although the court in that case admittedly
strained the language of the English Act in order to give effect to the presumed intention of the legislature
I think that this court would follow it since our rent restriction legislation is taken from the English
legislation on the subject and it has been applied in England for nearly half a century. It is however clearly
distinguishable from the present case by the fact that in Remon’s case the proceedings were instituted after
the Act, which brought the premises under rent restriction control, came into force, while in the instant case
they were instituted before. Hutchinson’s case ([1950] 1 K.B. 574), on which counsel for the
defendant/respondent also relies, is likewise distinguishable by reason of the fact that in my judgment the
amending Act is, unlike the Landlord and Tenant (Rent Control) Act 1949 of England, not retrospective.

For these reasons I would allow this appeal and I agree with the order proposed by my lord President.

Spry JA: I also agree. I am satisfied, relying on Noronha v. Devji, ([1954] A.C. 49), that the High Court
had jurisdiction to hear this suit. There are certain technical differences between the statutes concerned, but
the same principle must, I think, apply.

I am satisfied, also, that the Rent Restriction (Amendment) Act 1966 does not have retrospective
operation. It is certainly not made retrospective in express terms and I can see no such necessary implication.
Section 13 indicates the reverse and even sub-s. (4) of s. 15 of the Rent Restriction Act (Cap. 296), as
amended by the 1966 Act, on which counsel for the defendant/respondent particularly relied, cannot, in my
opinion, properly be referred to as retrospective. It is true that it refers to orders made before the passing of
the Act but not to invalidate them, but merely to give the tribunal power, in future, to review them. I confess
that I have found some difficulty in distinguishing the present case from Hutchinson v. Jauncey (supra), but
there are material differences between the statute with which the court was there concerned and that which
we are now examining and the judgments in that case leave me in doubt as to the passages on which the
court relied as indicating a retrospective intent.

I should also like expressly to associate myself with the comments made by my lord the President on the
case of Remon v. City of London Property Co. Ltd. (supra).

Appeal allowed. Defendant ordered to deliver up possession within three months. Enquiry ordered as to
mesne profits and water and sweeper charges (in default of agreement) with interest.

For the appellant:

JA Mackie-Robertson, QC and KA Shah
Kantilal A Shah & Co, Nairobi

For the respondent:

DN Khanna and RN Khanna
Khanna & Co, Nairobi