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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2023] KECA 1516 (KLR)
Kwanza Estates Limited v Jomo Kenyatta University of Agriculture & Technology
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·~13 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal has certified a Covid-19 lease dispute for Supreme Court review, deciding whether the pandemic counts as force majeure affecting contracts nationwide.
What this practically means
#Executive summary
#This was an application under Article 163(4)(b) of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 41(2), 42(b), 44(1) and 45 of the Court of Appeal Rules, 2022, seeking certification that an intended appeal to the Supreme Court raises matters of general public importance, and leave to appeal. The underlying dispute arose from a commercial lease of Nakuru Municipality Block 9/90 between the applicant (landlord) and the respondent (tenant). The respondent purported to terminate the lease on three months' notice and sued on the ground of frustration; the Environment and Land Court dismissed its suit, but the Court of Appeal at Nakuru (Sichale, Achode, Korir JJ.A.) allowed the respondent's appeal on 16th June 2023, holding that the lease contained a break clause, that the respondent was entitled to terminate, that Covid-19 was a force majeure event frustrating the lease, and ordered the respondent to pay Kshs. 40,000,000 for restoration, with each party bearing its own costs in that appeal. The applicant sought certification, arguing that the questions of whether Covid-19 constitutes force majeure discharging contractual obligations, whether a non-existent force majeure clause can be triggered or implied, and whether frustration fully or partially discharges a party, transcend the parties and bear on the public interest. The respondent opposed, contending the issues were confined to the parties' private lease. At the hearing only the applicant's counsel appeared. The court applied the Hermanus Phillipus Steyn principles, found that the applicant had identified specific elements of general public importance, and certified the matter and granted leave. Costs were awarded to the applicant.
Key legal issues
#01
Whether the Covid-19 pandemic and its effect on contractual obligations, including whether Covid-19 is a force majeure event and whether frustration fully or partially discharges contractual obligations, constitutes a matter of general public importance.
Holding
Yes; the issue transcends the parties and bears significantly on the public interest, warranting certification and leave to appeal to the Supreme Court.
Reasoning
The court considered the nine questions identified by the applicant, which concisely set out the specific elements of general public importance. The effect of Covid-19 on contractual obligations transcends the applicant, the pandemic having affected the general public. There is also a substantial question of law requiring the Supreme Court to settle the jurisprudence in light of divergent comparative decisions cited.
p. 7
Legal principles established
#- For certification under Article 163(4)(b), the intending appellant must show that the issue transcends the circumstances of the particular case, has a significant bearing on the public interest, and raises a substantial point of law that arose and was determined in the courts below.
- Certification is a genuine filtering process; only appeals with elements of general public importance reach the Supreme Court.
- A matter of general public importance is a matter of law or fact whose impact and consequences are substantial, broad-based, transcend the litigation interests of the parties, and bear upon the public interest.
Court orders
#- 1.Certification that the intended appeal to the Supreme Court involves a matter of general public importance
- 2.Grant of leave to the applicant to appeal against the judgment delivered on 16th June 2023 to the Supreme Court
- 3.The applicant to have the costs of the application
- On appeal from
- Court of Appeal at Nakuru (the impugned judgment under certification; the respondent's appeal from the Environment and Land Court at Nakuru)
- Not stated
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 41(2), 42(b), 44(1) and 45 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 72 (KLR)5 Dec 2025
- Frann Investments Limited v Kenya Anti Corruption Commission & 6 others[2025] KECA 1707 (KLR)24 Oct 2025
- Milly Glass Works Limited v Kenya Railways Corporation & 1 other[2025] KECA 1136 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kwanza Estates Limited v Jomo Kenyatta University of Agriculture & Technology", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1516/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.