Sunderji v Clyde House Company Ltd [1982] KECA 31 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that tenants with genuine defences about whether their tenancy is legally protected cannot be evicted through summary judgment without a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the pleadings and affidavits disclose a bona fide triable issue or issues as to whether or not the tenancy was a 'controlled tenancy' within section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (cap 301)
- 2.Whether the agreement of February 17, 1976 was an enforceable agreement or a mere 'agreement to agree'
- 3.Whether there was an oral agreement for a provision entitling the tenant to determine the lease prematurely upon refusal of a trade licence
- 4.Whether the draft lease was admissible on the summary hearing
Key legal issues
#Whether the tenancy was a 'controlled tenancy' under section 2(1) of the Act
The pleadings and affidavits disclosed bona fide triable issues on whether the tenancy was controlled; summary judgment was inappropriate and the tenant was given unconditional leave to defend.
The written agreement stated that possession was taken subject to the terms and conditions of a lease to be drawn by the landlord's advocates, raising the 'agreement to agree' question typified by Spottiswoode v Doreen. There was also a pleaded and deponed oral agreement permitting termination on refusal of a trade licence, which if established would bring the tenancy within the definition of a controlled tenancy under paragraph (b)(ii). The draft lease containing such a provision supported the tenant's case and was admissible.
Whether the summary judgment procedure was properly applied
The learned judge erred in dismissing the defences summarily; the issues required full trial with argument on the law.
The judge dealt with the 'agreement to agree' issue without reference to the relevant case law, and wrongly declined to consider the draft lease which had been exhibited to the plaintiff's own affidavit. The court cautioned against excessive use of summary powers, holding they multiply rather than save costs when triable issues exist.
Legal principles established
#- A defence that an agreement is a mere 'agreement to agree' raises a triable issue that should be tried with full argument on the law, not disposed of summarily.
- On a summary hearing a draft lease exhibited to an affidavit filed by the plaintiff may be looked at; the question of how a provision found its way into it is a matter for full trial.
- Excessive use of summary powers is counterproductive; defences raising bona fide triable issues must go to trial.
Court orders
#- 1.Appeal allowed
- 2.Summary judgment of the High Court set aside
- 3.Appellant granted unconditional leave to defend
- 4.Appellant awarded costs of the appeal and of the High Court proceedings, but for only one advocate
- 5.Certificate for two advocates refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Principal judgment: the pleadings and affidavits disclosed bona fide triable issues as to whether the tenancy was a controlled tenancy - first, whether the February 17, 1976 agreement was an enforceable agreement or a mere 'agreement to agree' in the light of Spottiswoode v Doreen; and second, whether there was an oral agreement entitling the tenant to terminate on refusal of a trade licence, possibly supported by the draft lease which the judge ought to have considered.
With respect, I do not think that the learned judge was right to dismiss these defences as not raising triable issues.p. 3
Wrote the judgment
Short separate concurrence enumerating additional triable matters including the landlord's acceptance of rent, absence of a registered lease and the tenant's caveat, and agreeing the appeal should be allowed.
I agree that the pleadings and affidavits disclosed bona fide triable issues including the effect of the last two printed lines of the documentp. 4
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over a High Court judgment (not stated in judgment); appeal against summary judgment under order XXXV of the Civil Procedure Rules
Relief refused
#Certificate for two advocates
The court limited the award of costs to one advocate and refused a certificate for two advocates.
Costs
Appellant awarded the costs of this appeal and of the High Court proceedings which led to the appeal, but for only one advocate; certificate for two advocates refused.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The main question before this court is whether the pleadings and affidavits disclose a bona fide triable issue or issues as to whether or not the tenancy was a “controlled tenancy.”
In my opinion the issue as to the application to the agreement of February 17, 1976 of the case law typified by the decision in Spottiswoode’s case, is an issue that should be tried with full argument on the law and not one which should be dealt with summarily in the way it was.
I would allow this appeal, set aside the summary judgment of the High Court, order that the appellant have unconditional leave to defend, and award the appellant the costs of this appeal and of the proceedings of the High Court which led to this appeal, but for only one advocate.
A certificate for two advocates is refused.
Issues in the judgment
#Appellant referred to Woodfall on Landlord and Tenant (28th edition, volume 1, pages 131-132), a textbook rather than a case; the casesCited field is limited to named cases.
The appellant's counsel of record is referred to as 'Aziz Mohamed' in the landlord's affidavit, which is identical to the appellant's name as it appears in this report; the case title of this appeal is not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sunderji v Clyde House Company Ltd [1982] KECA 31 (KLR)", Case Analysis (1982). Civil Appeal (High Court summary judgment appeal) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/31/eng@1982-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.