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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an enforceable tenancy of shop No 3, LR No 8836/528, or merely an agreement for a lease in principle
- 2.Whether the notice to quit took effect and determined the tenancy
- 3.Whether the plaintiff was entitled to exemplary, punitive, special damages for loss of profits and goodwill
- 4.Whether the trial judge's award of mesne profits to the defendant, and the deduction of the award from the deposit, could stand
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment.
May 27, 1988, Platt JA delivered the following Judgment.p. 1
- 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)
Relief refused
#Special damages for loss of profits and goodwill for the period the goods were locked up
The plaintiff should have vacated on September 1, 1986 when the notice to quit took effect; he could have referred the matter to the tribunal for delivery of the goods
Exemplary and punitive damages by both sides
Both parties were at fault
Mesne profits for the plaintiff for the period after October 1986
The award by the trial judge could not stand as the plaintiff did not claim those mesne profits; there is no cross-appeal on the counterclaim
Costs
As to the trial I would order each party to bear his own costs. They were and still are both at fault equally. On the plaint, the plaintiff is entitled to Kshs 1,000 damages and costs on that sum.
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.
Together with possession that spelt out a monthly tenancy and the defendant’s notice to quit in the proper form under cap 301 confirmed that position. There was a monthly tenancy.
as Rogan Kamper v Lord Grosvenor (1977) KLR 123 explained in the absence of an agreed lease there may still be a monthly tenancy arising out of possession and payment and payment of rent.
as no reference was made to the tribunal to dispute the notice, it took effect. (See section 6 of the Act). Thus the tenancy came to an end on September 1, 1986.
The defendant had to give quiet possession. He failed to do this in May and June when he painted the windows, turned off the water and when he locked the premises preventing the plaintiff having access to his goods.
But if Florence who saw the loss could not say what it was, and the accounts are not prepared, the court cannot do more than award nominal damages in the region of Kshs 1,000.
The court cannot adjudicate on matters which are not clearly set out in the pleadings and to be proved by the evidence.
I would allow the plaintiff half unsuccessful. As to the trial I would order each party to bear his own costs. They were and still are both at fault equally.
Issues in the judgment
#The tenancy commencement dates are internally inconsistent in the judgment
The judgment contains incomplete/duplicated text in the disposition passage
The defendant's premises references are inconsistent in the pleadings as recorded
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.