Moses Njoroge Thara & 1 other v Actae Development Limited & 1 other
The bottom line
#Kenya's Court of Appeal upheld the lease but threw out a Kshs. 1.36 million service charge award because the claimant failed to strictly prove the exact amount claimed.
What this practically means
#Executive summary
#Key legal issues
#Whether introduction of the Hotel-Type Scheme/Rental Scheme through the SCFMA and Deed of Adherence breached the permitted user clause of the Sub-lease
No breach. The Sub-lease expressly contemplated the management contract and required execution of the Deed of Adherence; the SCFMA and Deed of Adherence operationalised the Sub-lease, particularly the undefined term 'occasional house guests', and did not extend the permitted user.
The Sub-lease contained an entire agreement clause but Clause 6.2 expressly acknowledged the negotiated management contract and obliged the Lessee to execute a Deed of Adherence. The term 'occasional house guests' was undefined and, per Black's Law Dictionary, includes a paying guest; the number and criteria were left to the Management Company. Construing the three documents together, the ancillary agreements gave effect to, rather than varied, the Sub-lease. Rewriting the term to exclude paying guests would breach the settled rule that courts cannot rewrite contracts for parties.
Whether the 2nd respondent strictly proved its counterclaim for service charge of Kshs. 1,357,542
No. The claim was in the nature of special damages requiring strict proof; the amount was partly based on projections and the respondents failed to lead primary evidence of how the figure was computed.
A special damages claim must be pleaded and strictly proved. DW2 conceded no accounts were attached to exhibits; the sum claimed rested partly on projected rather than actual costs. In a dispute over quantum, the claimant had to explain with clarity how the figure was reached; merely sending statements was insufficient. The respondents' submissions also failed to address proof of the specific sum.
Whether judgment could be entered on the counterclaim for both respondents when only the 2nd respondent counterclaimed
No; the trial court erred, though the error had no practical consequence given the dismissal of the counterclaim.
The respondents conceded the 1st respondent had no counterclaim. Precedent establishes that a court cannot grant relief on an unpleaded counterclaim and a declaration cannot issue for a defendant absent a counterclaim. The error was capable of correction but became academic once the counterclaim was dismissed on proof grounds.
Legal principles established
#- A claim in the nature of special damages must not only be pleaded with specificity but must also be strictly proved; a claimant who disputes the exact figure must explain how the figure was arrived at
- No judgment may be entered in favour of a party who did not plead or raise a counterclaim
- Where a contract contemplates ancillary documents such as a management contract and deed of adherence, those documents are to be read together with the principal contract and do not, merely by virtue of being ancillary, vary its permitted user
Court orders
#- 1.Dismissal of the appeal on the first issue (no breach of the Sub-lease established)
- 2.Setting aside the judgment and decree on the counterclaim and substitution of an order dismissing the 2nd respondent's counterclaim
- 3.No order as to costs of the appeal
- On appeal from
- Environment and Land Court
- Mombasa ELC Case No. 196 of 2015
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules (appellate jurisdiction over the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Njoroge Thara & 1 other v Actae Development Limited & 1 other", Case Analysis (2024). Civil Appeal No. E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1480/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.