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Court of AppealDismissedCivil Appeal (High Court suit arising from plaint filed 10th February 1975)· [1977] KECA 8 (KLR)

Dorris Morgan v F.Stubenitsky [1977] KECA 8 (KLR)

Court of Appeal of East Africa (Kenya)
10 November 1977
2,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a landlord's rent claim because the tenancy papers failed to clearly identify the tenant, the rent, and the lease term.

What this practically means

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Executive summary

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The appellants, joint owners of a house in Riverside Drive, Nairobi, advertised it for letting on 22nd May 1974. The respondent replied on World Bank notepaper, and on 28th May 1974 his wife and the second appellant signed endorsements on the letter agreeing to take and let the house from 1st June 1974. The respondent withdrew the same day, and the appellants sued for damages for breach of the tenancy agreement. The High Court (Kneller J) dismissed the suit, holding that the documents read together did not satisfy section 3(3) of the Law of Contract Act, which requires a written memorandum signed by the party to be charged for contracts disposing of an interest in land. The Court of Appeal (Wicks CJ, Wambuzi and Law JJA) unanimously dismissed the appeal. All three elements of the statutory test failed in key respects: the letter's statement that the respondent's employer would pay the rent created ambiguity as to who the tenant was; no consideration was offered by the respondent personally; and the term was vague. Law JA differed from the judge on the identity of the landlord but agreed on the outcome, and held (obiter) that rent recovered from a previous tenant in lieu of notice should not have reduced the damages computation. The affirmation of the dismissal establishes that an ambiguous memorandum failing to identify the tenant, term or consideration cannot support a suit under section 3(3).

Key legal issues

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01

Sufficiency of the written note or memorandum under section 3(3) of the Law of Contract Act

Holding

The advertisement, letter and endorsements read together failed to identify the tenant or the consideration and term with clarity, so the requirements of section 3(3) were not satisfied and the suit could not be brought.

Reasoning

The court adopted the five-element test (parties, subject-matter, demise, term, consideration) from Long v Millar and Timmins v Moreland Street Property Co. The letter was written on World Bank notepaper stating the employer would pay the rent, creating ambiguity as to who was the tenant; no consideration was offered by Dr Stubenitsky personally; and the term was vague (two years expectation versus six-month advance payment, with the advertisement silent on duration).

p. 3
02

Whether recovery of one month's rent in lieu of notice from a previous tenant should reduce damages recoverable from the prospective tenant

Holding

Law JA held it should not, since the liabilities of two separate and distinct tenants are separate and distinct matters; but the point did not arise given the dismissal.

Reasoning

Law JA reasoned that the payment received from the previous tenant was in the nature of damages for that tenant's breach of a contract to which the respondent was a stranger, and the respondent could not take its benefit. However, because liability failed under section 3(3), the point was academic. Wambuzi JA expressly declined to consider it.

p. 2

Legal principles established

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  • A note or memorandum under section 3(3) of the Law of Contract Act must spell out in clear terms the parties, the subject-matter, the demise, the term and the consideration; documents may be read together to establish these.
  • Where the memorandum is ambiguous as to who was to be the tenant and the tenant offered no consideration, the requirements of section 3(3) are not satisfied and no suit lies on the contract.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (East African Court of Appeal practice); no specific constitutional or statutory provision stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dorris Morgan v F.Stubenitsky [1977] KECA 8 (KLR)", Case Analysis (1977). Civil Appeal (High Court suit arising from plaint filed 10th February 1975). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1977/8/eng@1977-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.