Duci Annalisa & 17 others v Zubedi Beach Properties & another [2017] KEELC 3427 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered a developer and a villa sub-lessee to reimburse cottage owners who paid shared utilities after the landlord abandoned its management duties.
What this practically means
#Executive summary
#Key legal issues
#Breach of the 1st Defendant's covenants under the sub-leases
The 1st Defendant breached its contractual obligations by failing to appoint a managing agent or provide the stipulated services after the Oaks Management Ltd contract expired on 30/6/2014.
The sub-lease obliged the 1st Defendant to appoint a managing agent or itself maintain, insure and light the common parts, and to ensure the Plaintiffs' quiet enjoyment. The management contract with Oaks Management Ltd expired on 30/6/2014 and the 1st Defendant neither appointed a successor nor assumed the responsibilities, exposing the Plaintiffs to utility disconnection. This was a fundamental breach sufficient to found the claim.
Existence of a cause of action against the 2nd Defendant
An implied contract bound the 2nd Defendant to contribute to service expenses, entitling the Plaintiffs to sue it.
Although the contract between the 1st and 2nd Defendants was not annexed, the Certificate of Title showed the 2nd Defendant as sub-lessee of six villas. Clause 5(iii) of the sub-lease covenanted contribution to service expenses proportionate to built-up area, importing those obligations to all cottage owners. The arrangement was analogous to the Sectional Properties Act scheme, and the Plaintiffs' management company collected the dues including the 2nd Defendant's portion.
Quantum and liability for the sums claimed
The apportionment of the outstanding debts, service charges and power bills across the 32 cottages was just and fair, and the Defendants were jointly and severally liable for their portions.
The Plaintiffs produced receipts of payments for land rent, electricity, insurance, rates and utilities after demand by the responsible authorities, and a tabulation apportioning the amounts equally across the 32 cottages. The court found the Plaintiffs were obliged to mitigate their losses after both Defendants abdicated their responsibilities, and having paid, were entitled to reimbursement.
Legal principles established
#- Clause 5(iii) of the sub-lease imports the obligations to contribute to service expenses into the contractual position of every cottage owner, including the 2nd Defendant, creating an implied contract justifying the claim.
- A party who mitigates its losses by paying utilities and service charges occasioned by another's breach is entitled to reimbursement from that party.
Court orders
#- 1.Judgment entered for the Plaintiffs against the Defendants jointly and severally as prayed in the plaint
- 2.Kshs 260,676.48 against the 1st Defendant for the year 2015 and Kshs 290,920.18 for the year 2016
- 3.Kshs 1,488,815 against the 2nd Defendant for the year 2015 and Kshs 1,745,521.08 for the year 2016
- 4.Permanent injunction restraining the Defendants from selling, alienating, transferring, charging or dealing with Cottage Nos. 11, 12, 13, 14, 16, 17 and 25 on Land Portion No. 9699 (Original No. 1863/1) Malindi, Grant No. CR. 28254/1
- 5.Costs of the suit and interest (as prayed in the plaint)
- Jurisdiction invoked
- Original civil suit within the jurisdiction of the Environment and Land Court over land use, title and leases (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duci Annalisa & 17 others v Zubedi Beach Properties & another [2017] KEELC 3427 (KLR)", Case Analysis (2017). Malindi ELC Suit (filed 15th October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3427/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.