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ELCPartially AllowedE.L.C. Case No. 596 of 2012· [2018] KEELC 977 (KLR)

Winners Delight Limited v James Ndegwa Thuku [2018] KEELC 977 (KLR)

Environment and Land Court
15 October 2018
KBK. Bor
1,893 words in judgment
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The bottom line

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A Kenyan company that failed to pay rent or prove it met its lease obligations lost its claim, recovering only its Kshs. 1 million deposit.

What this practically means

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Executive summary

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The Plaintiff, Winners Delight Limited, sued the Defendant, James Ndegwa Thuku, for breach of a 10-year lease dated 9/7/2009 over plot number 583 - Thome 5 along Thika Road, Nairobi, where the Defendant ran a bar. The Plaintiff paid Kshs. 1,000,000.00 on execution (equivalent to four months' rent) and Kshs. 100,000.00 towards change of user, claiming the parties agreed to postpone commencement of the lease by six months due to delays in obtaining building plan approvals. It alleged the Defendant lacked title and change of user, sought an injunction, a mandatory injunction for possession, specific performance, general damages and costs. The Defendant denied the claim, alleging he did not understand the lease, that only part of the plot was to be let, and that his business never stopped. The court held that the lessor's covenants did not include obtaining title or change of user; those obligations lay on the lessee under City Council by-law requirements. The lease was unregistered, the Defendant remained the registered proprietor, and the Plaintiff, having neither constructed nor paid any rent beyond the initial deposit, failed to prove performance of its obligations. The suit was dismissed, but the court directed the Defendant to refund the Kshs. 1,000,000.00 within 30 days and to allow the Plaintiff access to remove its goods from the premises. Each party was ordered to bear its own costs. Judgment was delivered by K. Bor, Judge, on 15 October 2018.

Key legal issues

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01

Allocation of the obligation to obtain title and change of user under the lease

Holding

The lessor's covenants did not include obtaining title or change of user; the lessee was to perform City Council by-law requirements

Reasoning

Clause 7 of the lease did not impose on the lessor the obligations the Plaintiff alleged were breached. The lessee, who was to conduct the business, was bound to satisfy City Council by-law requirements, which encompass change of user and necessary approvals. The Plaintiff's foundational breach claim therefore failed.

p. 2
02

Performance of the Plaintiff's obligations and entitlement to possession

Holding

The Plaintiff never took possession, never constructed, and paid no rent beyond the initial Kshs. 1,000,000.00 deposit, so no entitlement to possession or injunction arose

Reasoning

The lease gave a six-month grace period after which rent was payable even without completed construction. The Plaintiff neither constructed nor paid rent thereafter. The lease was unregistered, and the Defendant remained the registered proprietor entitled to his property rights. Injunction and mandatory injunction claims failed.

p. 2

Legal principles established

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  • Covenants to perform City Council by-law requirements, including change of user and approvals, fell on the lessee, not the lessor, where the lease so provides
  • A party seeking specific performance or injunction must prove performance of its own obligations under the contract

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendant is directed to refund the Plaintiff the sum of Kshs. 1,000,000.00 within 30 days of the date of the judgment
  3. 3.The Defendant is directed to allow the Plaintiff access to the suit premises to remove its goods from the Defendant's premises
  4. 4.Each party will bear its own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (first-instance suit on a lease of plot No. 583 - Thome 5, Nairobi)

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, "Winners Delight Limited v James Ndegwa Thuku [2018] KEELC 977 (KLR)", Case Analysis (2018). E.L.C. Case No. 596 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/977/eng@2018-10-15

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