Onorato Della Santa & Other v. Peera (Part 11). Civ. App. 15-D-69; Georges C. J.

Onorato Della Santa & Other v. Peera (Part 11). Civ. App. 15-D-69; Georges C. J.

The evidence disclosed that the landlords had leased the premises to Onorato Della Santa for a term of 3 years commencing 1^st April 1966. The lease contained a term that the lessee was not to assign or underlet a part of the demised premises without first obtaining the written consent of the lessors. On 1^st June, 1968 Onorato Della Santa without first obtaining the consent of the lessors assigned the demised premises to the second, third and fourth appellants. Annexed to the Written Statement of Defence was a letter asking for consent for the assignment. The landlords by their advocate replied by letter stating that they were not willing to give consent but would be prepared to reconsider the matter if the proposed assignees could provide a banker’s guarantee for payment of the rent. It would appear that at the date of the assignment rent was in arrears. On 17^th July 1968 the landlords wrote demanding the arrears and on 19^th July they demanded vacant possession of the premises in accordance with the provisions of the lease. Prior to this assignment, the lessor had been irregular in paying the rent and civil cases had been filed against him in 1967 and 1968 for arrears. At the date of hearing of the suit the original lessor was no longer in the country. The landlords claimed that because they had not received their rents regularly they had failed in meeting their mortgage payments in respect of the premises and had been sued b their mortgagees. The landlords further claimed that they now occupied rented premises and since their business was expanding they intended to use the premises themselves. The Resident Magistrate granted vacant possession and the appellants appeal against that finding.

            Held: (1) “[It was] argued that the Court had the power to approve sub-lease under the Rent Restriction (Amendment) No. 2) Act 1966 section 11 A(1) (c) ….. [The Court] was also referred to the Rent Restriction act Cap. 479 section 31(1) (a) and (b) which gives a tenant the power to sublet for a period of not more than six months with a possible extension for a further six months any premises of which the tenant is in personal occupation. I am satisfied that this section is not applicable to this case. It contemplates a short term subletting of premises to which the tenant intends to return. Indeed subsection (2) of section 30 imposed heavy per diem penalties on a subtenant who holds over. Subsection (5) does contemplate the situation in which the tenant does not reentor on the termination of the specified period and provides that the subtenant shall then be deemed to be the tenant of the landlord. Provision for this eventuality does not in my judgment expand the application of the section. There is absolutely

no doubt that an order for possession can be made against Onorato Della Santa. He is clearly in breach of his covenant not to assign or sublet without consent. He has gone to Europe and has no connections with the premises any more his lease has expired. No question as to the reasonableness of making the order can apply in his case. The question remains whether or not the other appellants as his assigness are protected. The Rent Restriction Act section 19(6) reads as follows: - (The Chief Justice then quoted the section) Are the appellants in this case persons to whom the premises have been lawfully sublet? This issue was considered with reference to identical legislation in England in the case of Maley v. Rearn [1946]2 All. E. R. 583. The tenant in that case whose tenancy contained a clause prohibiting subletting without the written consent of the landlord sublet a room to the defendant without obtaining consent. Subsequently he died and the landlord sued the defendant for possession. It was held in the Cot of Appeal by Morton, Somervell and Asquith L. JJ that defendant was not a person to whom the premises or any part thereof had been lawfully sublet within the meaning f the  Increase of Rent and Mortgage Interest Restrictions) Act – the equivalent English enactment. He was a mere trespasser and the landlord was entitled to possession. The Court quoted with approval a passage from Norman v. Simpson (1945) 62 T.L.R. 113 at p. 114 which stated: - “it would appear that the Legislation has in mind two classes of subtenant – namely, subtenants to whom the premises have been lawfully sublet, and sub-tenands to whom the premises have been lawfully sublet, and sub-tenands to whom the premises have been unlawfully sublet. It is not easy to see exactly what tenants fall within the latter class, but we think the most reasonable explanation of the sub-section is that premises are in a state of being ‘unlawfully sub-let’ within the sub-section if the head lessor has a subsisting right of re-entry, and are being ‘lawfully sub-let’ when the head lessor has no such right.” Once the premises had been sub-let to the second, third and fourth appellants without the consent of the landlord, he had a subsisting right of re-entry. It does not appear to me that one can consider in this action the question as to whether or not consent had been unreasonably withheld and should have been granted. This may have been considered had an application been made for consent, refusal received and thereafter an assignment made on the basis that the refusal was unreasonable. On an action by the landlord then for possession the reasonableness of the refusal could be litigated. If it were found to be unreasonable then the subletting would be lawful and the protection on the Ordinance would be available. In this case there was no serious request for consent. A letter dated May 30^th asking for consent was dispatched and on 1^st June the assignment had been made. A landlord must obviously be given time to consider a request for a consent to assignment. He would need to make enquiries about the proposed tenants. That the position in East Africa is similar to that in England can be deduced from the report in the Privy Council of Ngara Hotel Limited and ors v. Rajabally Kassam Suleman and others. (1952) 19 E.A.C.A. 214. In that case the landlord rented the suit premises to defendants 2 and 3 on a monthly tenancy with a covenant against assigning or parting with possession without the written consent of the landlord. The second and third defendant sold the premises to the fourth and fifth defendants; they in turn sold to the sixth, seventh and eighth defendants. Later the defendant company was incorporated to take over the hotel as a going concern. None of these assignments was with consent. One of the defences raised to the action by the landlord for possession was the protection of the Rent Restriction Acts. Dealing with this thief Lordships stated as follows: - “It was suggested that the defendants were protected by the Rent Restriction Ordinances applicable to Kenya.

 

 

(1970) H.C.D.

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The point was not pressed, nor was it easy that it should be. The provisions of the Ordinance only protect (i) a tenant and (ii) as their Lordships understanding it a tenant in occupation. Of the persons who have invoked the protection of these provisions, the 1^st defendant the limited liability company was at the material time in occupation, but was not a tenant and the 2^nd and 3^rd defendants at that time, if tenants were not in occupation.” [I was referred] to Chogley v. Bains (1955) 22 E.A.C.A. 27. I do not think this authority helps. It considers the case of an assignment made by a tenant when there is no covenant in the tenancy agreement against subletting. In the course of the judgment a passage from megarry’s Rent Acts 6^th Ed. P. 345 is quoted with approval. The passage reads:- “A subletting is not unlawful’, however, merely because ….. without contravening the terms of the tenancy, it was a subletting of the whole of the premises made without the consent of the landlord and so became one of the statutory grounds on which an order for possession can be made. In such cases the subtenant will be protected, despite the order or possession against the tenant.” A distinction is clearly implied between tenancies in which there is a prohibition against subletting and those in which there is not. 92) “I would agree, therefore, with the finding of the Senior Resident Magistrate that the second, third and fourth appellants are trespassers now that the original lease has expired. They do not come under the protection of the Ordinance. No questions can arise as to the reasonableness of making the order.” (3) Appeal dismissed.