Lucy Sharon Mwenda v Susan Kathure Marete (Environment & Land Case 38 of 2016) [2017] KEELC 784 (KLR)
The bottom line
#A Meru court upheld a landlord's termination notice and confirmed it cannot enforce an oral renovation refund deal not in the lease.
What this practically means
#Executive summary
#Key legal issues
#Validity of the landlord's Notice dated 11.06.15 under section 7 of Cap 301
The grounds listed in the Notice were provided for under section 7 of Cap 301 and the tribunal properly allowed it
The court found that the fall-out between the parties was the tenant's demand for a refund of renovation costs, which was an oral contractual arrangement outside the tribunal's statutory mandate. The landlord's first notice of 13.02.14 failed under section 7, but the tribunal itself permitted issuance of a fresh notice, which the landlord duly issued on 11.06.15. The appellant, having been content with the earlier decision that authorised a fresh notice, could not then attack the subsequent notice.
Whether the court could intervene in the tenant's claim for refund of renovation costs
No - the claim is a contractual matter which neither the tribunal nor the court could adjudicate
The court applied the principle from National Bank of Kenya Ltd v Pipealastic Samkolit (K) Ltd that courts cannot rewrite contracts. The renovation arrangement was oral and the parties are bound by their bargains; equity will not relieve a party from a bad bargain absent pleaded and proved coercion, fraud or undue influence.
Whether the tribunal erred in entertaining reference No. 41A of 2015 after deciding reference No. 3 of 2014
No - the tribunal itself had allowed the landlord to issue a fresh notice, so entertaining the reference on that fresh notice was proper
The court noted that the first notice of 13.02.14 did not meet section 7 requirements, and it was the tribunal's own decision in reference No. 3 of 2014 that permitted a fresh notice. The appellant accepted that earlier decision without appealing, so she could not complain that the tribunal entertained the subsequent reference.
Legal principles established
#- A court cannot rewrite a contract between parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
- A party cannot escape from the consequences of their bargains
Court orders
#- 1.The appeal herein is dismissed
- 2.Any stay orders given in respect of these proceedings are hereby vacated
- 3.Appellant is to pay costs of this appeal
- On appeal from
- Business Premises Rent Tribunal (BPRT), Meru
- Reference No. 41A of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the Business Premises Rent Tribunal (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Sharon Mwenda v Susan Kathure Marete (Environment & Land Case 38 of 2016) [2017] KEELC 784 (KLR)", Case Analysis (2017). Not stated (appeal from Meru BPRT Reference No. 41A of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/784/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.