The tenant applied for and was granted a further tenancy in premises recently purchased by the landlords for their own use. The tenant was an auctioneer and estate agent, and to assist him in these occupations he had partitioned off two small offices in the suit premises. The landlords appealed.
Held (17 April 1956):
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That a retail trade or business includes an auctioneer but not an estate agent.
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That whether or not premises are used wholly or mainly for one of several businesses carried on in the same premises is a question of fact to be decided on common sense lines.
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That where the provisions of a local ordinance are different from those of a United Kingdom statute, the utmost caution must be exercised when applying the latter as an aid to construction. The Court should only be guided by United Kingdom decisions on the construction of a United Kingdom Act to the extent that it is in pari materia, or that the reasoning of the United Kingdom authorities is applicable to the words and expressions used in the Ordinance.
Cases cited:
Berthelemy v. Neale, (1952) 1 A.E.R. 437; U.N. Patel & Sons Ltd. v. Eric Shirley, Civ. App. No. 13/1955; Commissioner of Stamps, Straits Settlements, v. Oei Tjong Swan and Others, (1933) A.C. 378 (P.C.); Wallace Johnson v. The King, (1940) A.C. 231, 240 (P.C.); Trimble v. Hill, 5 A.C. 342, 345 (P.C.); M.R.M.M.N. Nadarajan Chettiar v. C.H.M.R.M.W.T. Walauwa and Another, (1950) A.C. 481, 492; Deeble v. Robinson, (1953) 2 A.E.R. 1348, 1350; M. & F. Frawley v. Veri-Best Mfg. Co. Ltd., (1953) 1 A.E.R. 50; Wheatley v. Smithers, (1906) 2 K.B. 321; Harris v. Amery, L.R. 1 C.P. 148, 154; Rolls v. Miller, 53 L.J.R. 101; Re a Debtor, (1936) Ch. 237, 239; Re a Bankruptcy Notice, 44 T.L.R. 533; Dhanji and Govind Bros. v. Kanjee Naranji, Civ. App. No. 36/1955; Turpin v. Middlesbrough Assessment Committee, (1931) A.C. 470, 475; Ritz Cleaners Ltd. v. W. Middlesex Assessment Committee, (1937) 2 A.E.R. 377; Sher Mohamed Quereshi v. Cycle Mart and Exchange Ltd., Civ. App. No. 87/1955.
Statutes cited:
Leasehold Property (Temporary Provisions) Act, 1951;
Shops Act, 1950.
Counsel:
Leach for the Appellant.
Hunter for the Respondent.
Reported by:
R.H. Lownie, Esq., Resident Magistrate, Nairobi.
