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ELCDismissedELC Case No. 728 of 2012· [2017] KEELC 3819 (KLR)

Ganshyambhai Desaibhai Patel & another v Kenya Airports Authority [2017] KEELC 3819 (KLR)

High Court of Kenya, Environment and Land Court
12 October 2017
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed tenants' claim against Kenya Airports Authority because they never submitted the required building plans when requesting lease approval.

What this practically means

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Executive summary

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The Plaintiffs, lessees of Plot L.R No. 70118/1 from the Kenya Airports Authority under an 87-year lease commencing 1st June 2008 (registered as I.R No. 120457/1), sued for quiet enjoyment, a mandatory injunction compelling approval of a perimeter wall, an injunction against interference, and damages. They claimed the Defendant breached the lease by ignoring their requests for approval, causing loss of Kshs. 8,192,000/= in rent paid for land they could not use. The Defendant's Defence was struck out on 21st May 2014 as a sham and bare denial, and the matter proceeded by formal proof. At the hearing, PW1 testified that requests for approval had been made from 2009 through correspondence, but conceded in cross-examination that building plans and drawings had been attached. The court framed two issues: breach and remedies. It found that Clause 2(b)(i) of the Lease required submission of plans, drawings and specifications with any approval request, and that the Plaintiffs' letters contained none; the Defendant could not therefore be blamed for the failure to approve, especially as it had indicated on 21st April 2011 that the request was under consideration. The claim failed on a balance of probabilities. The court disallowed prayers (a) to (e) but, in effect under prayer (f), ordered the Plaintiffs to lodge a complete application within 45 days and the Defendant to decide it within 45 days of receipt. Each party was to bear its own costs.

Key legal issues

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01

Whether the Defendant breached the Lease Agreement by failing to approve construction of a perimeter wall

Holding

No breach found; the Plaintiffs' approval requests were incomplete because they omitted the plans, drawings or specifications required by Clause 2(b)(i) of the Lease

Reasoning

Clause 2(b)(i) required the lessee to submit plans, drawings and/or specifications to the lessor's engineering department before commencing construction. The Plaintiffs' letters from January 2011 to September 2011 sought approval but attached no plans or drawings, contrary to the clause. PW1's claim in cross-examination that maps and plans had been attached was not supported by evidence, so the Defendant could not be blamed for the failure to approve.

p. 3
02

What remedies accrue to the Plaintiffs

Holding

No injunction or damages flow from a finding of no breach; instead the court directed a fresh, complete application and a timely decision by the Defendant

Reasoning

Having found the Defendant not in breach, the court held that an injunction could not issue and damages could not flow. In lieu, the court directed the Plaintiffs to submit a complete application within 45 days and the Defendant to decide approval or disapproval within 45 days of receipt, importing a reasonableness obligation on the Defendant.

p. 3

Legal principles established

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  • A breach of contract occurs when a party fails to fulfil the obligations imposed on them by the terms of the contract
  • A lessee seeking a lessor's approval for construction must comply strictly with the contractual procedure, including submission of plans and drawings

Court orders

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  1. 1.The Plaintiffs' orders sought in prayers No. (a), (b), (c), (d) and (e) are disallowed
  2. 2.The Plaintiffs to submit a complete application to the Defendant within 45 days from the date of the judgment
  3. 3.The Defendant to issue its decision on whether the application is approved or not within 45 days after receipt of the complete application
  4. 4.Each party to bear its own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as the court of first instance over disputes relating to land)

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, "Ganshyambhai Desaibhai Patel & another v Kenya Airports Authority [2017] KEELC 3819 (KLR)", Case Analysis (2017). ELC Case No. 728 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3819/eng@2017-10-12

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