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ELCDismissedNot stated in the judgment· [2015] KEELC 490 (KLR)

Muneef Mohamed Omar & another v Emmanuel Charo Tinga & another [2015] KEELC 490 (KLR)

High Court of Kenya
15 May 2015
OAO. A. Angote
1,701 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This first-instance judgment of the High Court at Malindi (O. A. Angote, J) dealt with two striking-out applications dated 3rd June 2014 (2nd Defendant) and 16th June 2014 (1st Defendant) in a suit arising from the termination of an operators lease over a petrol station on plot 879/2, Watamu. The Plaintiffs claimed that the 1st Defendant had unlawfully terminated the lease and forcefully ejected them on 4th December 2013 so that the premises could be leased to the 2nd Defendant, and sought general damages for breach of lease, loss of goodwill, a declaration that the termination notice was illegal, and a permanent injunction. The 1st Defendant argued the lease was validly terminated by 30 days' notice as the agreement permitted, while the 2nd Defendant, a stranger to the lease, contended that no act was attributed to it. Applying the D.T. Dobie test, the court held that clause 2 of the lease allowed either party to terminate at any time on 30 days' written notice without reasons; the notice was served and acknowledged; the clause relied on by the Plaintiffs (17(c)) was irrelevant; and courts cannot re-write contracts or imply terms. The permanent injunction could not issue since the Plaintiffs had already vacated, no conversion claim was pleaded, and no cause of action was disclosed against either Defendant. The applications were allowed and the suit struck out with costs on 15th May 2015.

Key legal issues

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01

Whether the Plaint discloses a reasonable cause of action against the Defendants

Holding

The suit does not disclose a cause of action and is struck out

Reasoning

The lease permitted either party to terminate at any time on 30 days' written notice without reasons. The 1st Defendant issued such a notice which the Plaintiffs acknowledged, and they vacated the premises. No claim for conversion was pleaded, and the 2nd Defendant was a stranger to the lease. Accordingly no cause of action in contract or tort was disclosed against either Defendant.

p. 4
02

Whether the termination notice was lawful under the lease

Holding

Clause 2 of the lease allowed termination by 30 days' notice at any time without reasons, so the notice was lawful

Reasoning

The Plaintiffs relied on clause 17(c), but that clause concerned alteration or amendment of terms, not termination. Clause 2 was clear and unambiguous. The court cannot improve or re-write the contract or imply a term that reasons had to be given for termination.

p. 3
03

Whether the 2nd Defendant is properly sued

Holding

The 2nd Defendant, not being party to the lease, cannot be liable; no act was attributed to it in the Plaint

Reasoning

The 2nd Defendant was a stranger to the alleged relationship between the Plaintiffs and the 1st Defendant, and the Plaint disclosed no single act by the 2nd Defendant giving rise to any relief against it. A third party can neither sue nor be sued on a contract it is not party to.

p. 1

Legal principles established

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  • A suit should not be summarily struck out unless it plainly and obviously discloses no cause of action and cannot be cured by amendment
  • Courts cannot re-write contracts for parties nor imply terms not part of the contract
  • A third party can neither sue nor be sued on a contract to which it is not a party

Court orders

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  1. 1.The Defendants' Applications dated 3rd June 2014 and 16th June 2014 are allowed
  2. 2.The Plaintiffs' suit is struck out with costs

Authorities

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Cases cited (11)

  • Drummad Jackson Vs British Medical Association
    (1970) 2 WLR
  • DT Dobie & Company (K) Ltd Vs Machine
    (1982) KLR 1
  • Five Stars Agencies Ltd & 3 others Vs East African Portland Cement Company & 2 Others
    (2005) eKLR
  • Agricultural Finance Corporation Vs Lengetia Limited
    (1985) KLR 765
  • Stanley Kirui Vs Westlands Pride Limited
    (2013) Eklr
  • Peter Ndungu Ngae Vs Ann Waithera Ndungu & 2 Others
    (2014) e KLR
  • D.T.Dobie & Co. Ltd Vs Muchina & Another
    (1982) KLR1
  • Drummand Jackson Vs BMA
    (1970) I WLR 688
  • Rufale Vs Umon Manufacturing Co. (Ramsboltom)
    (1918) L.R 1KB 592
  • Attorney General of Belize et al Vs Belize Telecom Ltd & Another
    (2009), 1WLR 1980
  • Trollope Colls Ltd Vs North West Metropolitan Regional Hospital Board
    (1973) I WLR 601
Jurisdiction invoked
Not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muneef Mohamed Omar & another v Emmanuel Charo Tinga & another [2015] KEELC 490 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/490/eng@2015-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.