Dwijendra Kumar t/a Rafkins College v Registered Trustees of National Union of Kenya Muslims Coast Province Trust Fund (Civil Appeal 6 of 2014) [2015] KECA 888 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a tenant's appeal, confirming that a permissively worded contract clause can still be a binding obligation.
What this practically means
#Executive summary
#Key legal issues
#Whether construction of classrooms on the roof was a material term of the agreement
Although worded permissively, the parties intended the construction of the classrooms to form part of the appellant's obligations; the appellant's failure to construct them was a breach
The agreement as a whole provided both for the handing over of the 5 classrooms and for the extension and construction of classrooms on the roof. Even though the construction clause used permissive language, the concurrent findings established that the parties took it into account and intended it to form part of the appellant's obligations. The claim that the judge re-wrote the contract therefore failed, since the clause was part of the agreement the parties entered into.
Whether the surrender of the 5 classrooms constituted adequate consideration for the rent moratorium
No; the agreement as a whole showed that both the surrender of the classrooms and the construction of additional classrooms were intended, and consideration need only be something of value, not adequate
The court endorsed the first appellate judge's commercial reading of the agreement: the surrender of the classrooms alone did not make commercial sense as the sole consideration for a four-year rent moratorium. Consideration need not be adequate but must be something of value moving from the promisee. Reading the agreement as a whole, the obligation to construct classrooms was part of the consideration and the appellant did not perform it.
Whether the appellant could rely on frustration because the respondent failed to facilitate building plan approvals
No; clause 4 placed responsibility for procuring building plans and approvals on the appellant, so any frustration would be self-induced
Clause 4 of the agreement expressly required the tenant to bear all costs of preparing the building plan and approvals and of the construction. The allegation that the respondent made construction impossible was a question of fact not open on second appeal. Relying on Chitty, the court held that frustration cannot be self-induced, and a party cannot rely on his own breach to escape his contractual obligations.
Whether the appellate court could interfere with the discretionary refusal of the injunction
No; the trial judge and magistrate correctly found the appellant undeserving of the equitable remedy of injunction
Applying the established principles in Mbogo v Shah and Chotram v Nazari, an appellate court interferes with discretion only where the judge misdirected himself or was clearly wrong resulting in injustice. Here nothing showed the discretion was exercised wrongly or whimsically; rather, the concurrent judgments showed the appellant, being in breach, was undeserving of the equitable relief sought.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is limited to matters of law and it will not interfere with concurrent findings of fact by the two lower courts unless those findings are based on a misapprehension of the evidence.
- Consideration need not be adequate; it need only be something of value moving from the promisee, and the interpretation of an agreement depends on consideration of the agreement as a whole and not an isolated clause.
- A contracting party cannot rely on self-induced frustration, that is, frustration due to his own conduct or breach of contract, to escape his obligations under the contract.
- An appellate court can only interfere with the exercise of judicial discretion where the trial judge misdirected himself and arrived at a wrong decision, or where it is manifest the judge was clearly wrong and injustice resulted.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.A. No. 147 of 2007
- Jurisdiction invoked
- Second appeal to the Court of Appeal limited to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Josvir Traders & Agencies Limited v Geffrey Chege Kirundi &2 others [2022] KEELC 1389 (KLR)[2022] KEELC 1389 (KLR)18 Feb 2022
- John Kungu Kiarie v Dyer & Blair Investment Bank Ltd & another[2016] KEHC 6270 (KLR)10 Mar 2016applied
Cite this brief
#Cite this brief
Caselaw, "Dwijendra Kumar t/a Rafkins College v Registered Trustees of National Union of Kenya Muslims Coast Province Trust Fund (Civil Appeal 6 of 2014) [2015] KECA 888 (KLR)", Case Analysis (2015). Civil Appeal No. 6 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/888/eng@2015-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.