Taj Mall Limited v Mohit Dhawan & 6 others [2018] KEELC 1179 (KLR)

The court examined clause 1(viii) of the leases which prohibited alterations without the written consent of the lessor and/or the manager. It held that the words 'and/or' meant that consent could come from both the lessor and the management company, or from either of them. The board of directors of the management company granted written consent, uncontroverted by any shareholder or director, so the works were lawful.

The City Council of Nairobi had approved the additions by a letter dated 11/10/2010 and no evidence controverted that approval. No evidence was given by the 7th defendant to show the basis on which it demolished structures it had duly authorised. The court therefore found the demolition unlawful, though no damages were awarded because the Council ceased to exist in 2013 and was not substituted.

Recital E and clause 4(vi) of the leases obligated the lessor to transfer the reversionary interest upon payment of full membership fees of Kshs 100,000 per member. PW1 confirmed all maisonettes were sold and fees paid, and that the plaintiff held no other interest in the property. The counterclaim was thus not premature and the transfer was ordered within 60 days.

The 1st to 6th defendants led uncontroverted evidence that the plaintiff's director, Ramesh Gorasia, handed over the title, certificate of incorporation and drawings and authorised the management company to procure approval in its name. Having fully disposed of its interest and facilitated the application, the plaintiff could not establish any element of fraud.