National Oil Corporation v Suleiman Mohamed Said Suleiman Al-busaidy & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that a lease transferred without the landlord's written consent is void, but cut damages to start from 2008.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1937 lease had been terminated before the 2013 application for waiver of consent
The lease had already terminated by the time the waiver was applied for in 2013, because the requisite six months' notice of the landlord's intention to re-enter was given, as evidenced by the appellant's own letter of 8th July, 2010 acknowledging receipt.
The lease required six months' notice before re-entry for breach. The letters of 20th May 2010 and 12th July 2010 conveyed the landlord's intention to re-enter for non-payment of rent. The appellant's reply of 8th July 2010, indicating it had paid rent for 2005-2007 to Pandya & Talati, satisfied the Court that the appellant received the requisite notice. Accordingly the lease had terminated before the 2013 waiver application, disposing of issues (i) to (iv).
Whether the assignment of the lease to the appellant without the head lessor's consent was valid
The assignment was null and void because the lease expressly required the landlord's written consent before assignment, which was not obtained.
The 1937 lease forbade assignment without the landlord's written consent, which was not to be unreasonably withheld. The 3rd and 4th respondents knew of this clause yet assigned the lease to the appellant without consent. The Court, citing Lalji Karsan Rabadia, held that courts must maintain performance of contracts according to the parties' intention, rendering the purported assignment void.
Whether mesne profits should run from 1985
The award of mesne profits was varied to commence from 2008, when the appellant entered the suit premises, because the rates invoice showed arrears for 1985-2007 had been cleared in December 2007.
The trial judge based the award from 1985 on a municipal council rates invoice, but a receipt dated 20th December 2007 for Ksh. 714,539.15 showed rates for 1985-2007 were cleared. There was no evidence of unpaid rent. Mesne profits, being profits a person in wrongful possession received, could only run from 2008 when the appellant took possession.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses testify.
- A lease that is to be assigned only with the head lessor's written consent cannot validly be assigned without that consent; a purported assignment without the required consent of the head lessor is null and void.
- Mesne profits are recoverable only in respect of the period during which the defendant was actually in wrongful possession of the property, as defined in section 2 of the Civil Procedure Act.
Court orders
#- 1.Mesne damages payable by the appellant for the period starting from 2008 until payment in full plus interest thereon at court rates
- 2.The rest of the appeal dismissed with costs to the 1st and 2nd respondents
- 3.The appellant given 60 days from the date of the judgment to vacate the suit premises or be evicted therefrom
- On appeal from
- Environment and Land Court, Mombasa
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (Rule 29(1)(b) of the Court of Appeal Rules invoked for re-evaluation of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Waswa v Nyongesa (Environment and Land Case 43 of 2001) [2026] KEELC 3138 (KLR)[2026] KEELC 3138 (KLR)11 May 2026
Cite this brief
#Cite this brief
Caselaw, "National Oil Corporation v Suleiman Mohamed Said Suleiman Al-busaidy & 3 others", Case Analysis (2022). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/79/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.