Nyaboga v Muriithi [1988] KECA 7 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that paying rent and occupying premises creates a protected monthly tenancy, but tenants who ignore valid notices get almost nothing.
What this practically means
#Executive summary
#Key legal issues
#Existence of a monthly tenancy despite incomplete lease negotiations
Possession taken with the landlord's consent, together with payment of rent while terms were being bargained for, spelt out a monthly tenancy protected by cap 301.
The court applied Rogan-Kamper v Lord Grosvenor: even without an agreed, executed and registered lease, a monthly tenancy may arise from possession and payment of rent. The plaintiff occupied the new shop with consent, bought the shelves, paid advance rent, and the landlord's notice to quit in the proper form under cap 301 confirmed that a tenancy existed. The exchange of premises meant the plaintiff could not be tenant of both shops.
Determination of the tenancy by unchallenged notice to quit
The notice to quit took effect on September 1, 1986 because the plaintiff did not refer it to the tribunal.
Under section 6 of cap 301, a tenant who wishes to dispute a notice must refer it to the tribunal. The plaintiff did not do so, so the notice took effect and the tenancy ended on September 1, 1986. The plaintiff was consequently wrong not to pay rent after March and should have vacated the premises on that date.
Implied undertakings of the landlord under cap 301
The landlord breached the implied undertaking to give quiet possession by painting over the windows, turning off the water and locking the premises.
The schedule to cap 301 sets out implied undertakings. The defendant's conduct in May and June 1986 - painting the windows, obliterating the business name, turning off water and locking the premises so the plaintiff could not access his goods - breached the undertaking to give quiet possession, but only nominal damages could be awarded because the loss was not proved.
Special damages for loss of profits and goodwill
Special damages cannot be awarded where the loss is unquantified; only nominal damages of about Kshs 1,000 were appropriate.
The plaintiff's witness who saw the loss of business could not say how much it was, and the accounts were not completed. The court cannot award more than nominal damages where the loss is unproved. Further, having been wrong not to vacate on September 1, 1986, the plaintiff could not claim loss of profits and goodwill for the period his goods were locked up; he should instead have referred the matter to the tribunal.
Mesne profits awarded by the trial judge
The award of mesne profits to the defendant could not stand as it was not claimed in the pleadings and there was no cross-appeal.
The trial judge had awarded the defendant mesne profits at Kshs 2,000 per month, deductible from the deposit. The Court of Appeal found no claim for failure to pay rent properly before the court and the plaintiff had not claimed mesne profits for that period; the parties had not even raised repayment of the deposit. Without a cross-appeal, the court could not sustain that award.
Claims and pleadings clarity
Both parties were uncertain of their claims in pleadings and evidence; courts cannot adjudicate on unclear matters.
Gachuhi JA added that neither party was certain of their claims, and that the court's function is confined to matters clearly pleaded and proved. This underpinned the refusal to confirm the mesne profits award and the deduction-from-deposit reasoning, none of which was claimed.
Legal principles established
#- In the absence of an agreed lease, a monthly tenancy may arise out of possession and payment of rent, and such an unwritten tenancy is protected by cap 301.
- A tenancy terminated by a notice to quit under cap 301 comes to an end on the date stated in the notice where no reference is made to the tribunal.
- The court cannot adjudicate on matters not clearly set out in the pleadings and proved by the evidence.
Court orders
#- 1.The appeal was allowed in the terms (including costs) proposed by Platt JA
- 2.Damages of Kshs 1,000 (nominal damages) awarded to the plaintiff on the plaint, with costs on that sum
- 3.The trial judge's award of mesne profits set aside as it could not stand
- 4.Each party to bear his own costs of the trial
- On appeal from
- High Court
- Jurisdiction invoked
- First appeal to the Court of Appeal from a High Court decision (the judgment does not cite the specific constitutional or statutory provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaboga v Muriithi [1988] KECA 7 (KLR)", Case Analysis (1988). Appeal from the judgment of the High Court at Nakuru (Masime J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/7/eng@1988-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.