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ELCAllowedNot stated in the judgment as provided· [2018] KEELC 3123 (KLR)

Adbulmajid Mohamed Adam v Nimish Shah t/a Flora Printers [2018] KEELC 3123 (KLR)

Environment and Land Court
28 May 2018
4,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a tenant who breaks a landlord's main wall without consent commits a fundamental breach justifying termination of the tenancy.

What this practically means

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Executive summary

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This was a first-instance appeal to the Environment and Land Court at Mombasa (C. Yano, J) from a Business Premises Rent Tribunal judgment of 9th September 2016 which dismissed the landlord's Notice of termination dated 7th March 2011 and allowed the tenant's Reference of 27th April 2011. The landlord appealed on 16 grounds, principally that the Tribunal erred in finding that the tenant had express or ostensible authority to break a portion of the premises' main wall and erect an access door to adjacent go-downs. The court framed three issues: competence of the appeal for want of a certified decree; whether the tenant needed the landlord's consent to break the wall and whether it was given; and whether the landlord's claim was time barred. On the first issue, the court, bound by Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata, held the record competent since a certified judgment suffices, the omission being a mere technicality inconsistent with substantive justice under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution. On consent, the court found the tenant's evidence contradictory (his 2011 affidavit denied ever dealing with the landlord) and held the Chairman misdirected himself. Because the tenancy was unwritten, the implied statutory terms of Cap 301 applied, making repairs to main walls the lessor's responsibility, so the tenant's unauthorized breaking of the wall was a material and fundamental breach. The limitation defence failed as the landlord discovered the breach shortly before the notice. The appeal was allowed, the Tribunal's judgment set aside, the Reference dismissed, the termination notice allowed, and costs of both the Tribunal and the appeal awarded to the landlord.

Key legal issues

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01

Competence of appeal without certified copy of decree

Holding

The appeal was not incompetent; the certified judgment sufficed and the omission of the decree was a mere technicality.

Reasoning

Order 42 Rule 2 requires filing of a certified decree, but the proviso to the definition of 'decree' under Section 2 of the Civil Procedure Act provides that for appeal purposes a decree includes judgment. The record contained a certified copy of the Tribunal's judgment. Relying on Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata (Court of Appeal), the court held substantive justice under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution outweighs the technicality, and the pre-2010 authorities relied on by the Respondent are no longer good law.

p. 3
02

Whether the Respondent had the landlord's consent to break the wall

Holding

No consent was proved; the Respondent's evidence was contradictory and insufficient, and the Tribunal's contrary finding was unsupported.

Reasoning

The landlord denied giving consent; the Respondent alleged oral consent given ten years earlier. However, the Respondent's own affidavit of 6th June 2011 deponed that he had only dealt with Ms. Haji Adam Yusuf Ltd and not the Appellant. These two contradictory statements on oath raised credibility doubts. The evidence supporting consent was therefore contradictory and insufficient, and the Chairman misdirected himself in finding ostensible and/or express authority.

p. 4
03

Whether tenant required landlord's consent to alter the main wall

Holding

Yes; under the implied statutory terms, repairs to main walls are the lessor's responsibility, so the tenant could only alter the wall with the landlord's consent.

Reasoning

The lease was not in writing, so the terms implied by Section 3(2) of Cap 301 applied. Paragraph (v) of the schedule makes the lessor responsible for repairs to main walls. Breaking a wall entails main repairs, so the tenant could only undertake such alterations with the landlord's consent or authority. The Chairman's finding that there was no express clause prohibiting alterations was a misdirection, and Halsbury's confirms that pulling down part of the premises without express or implied power is a breach of the covenant to repair.

p. 5
04

Limitation of actions defence

Holding

The claim was not time barred because the landlord only learned of the broken wall shortly before issuing the notice.

Reasoning

The Respondent argued the claim was barred under the Limitation of Actions Act because the wall was broken ten years before the notice. The Appellant testified he only discovered the broken wall and access door immediately before serving the termination notice. The Respondent's own affidavit confirming he had never dealt with the Appellant supported that contention, so the defence failed.

p. 5

Legal principles established

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  • A record of appeal is competent where it contains a certified copy of the judgment even if the formal decree has not been included, since for purposes of appeal 'decree' includes judgment under Section 2 of the Civil Procedure Act.
  • Where a controlled tenancy is not reduced to writing, the statutory implied terms under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act apply, under which repairs to main walls are the responsibility of the lessor, and a tenant may only undertake such alterations with the landlord's consent.
  • It is a breach of the covenant to repair if the tenant pulls down any part of the premises or makes alterations unless expressly or impliedly given power to do so by the lease.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the Tribunal dated 9th September 2016 is set aside
  3. 3.An order substituted dismissing the tenant's Reference dated 27th April 2011
  4. 4.The Landlord's Notice dated 7th March 2011 is allowed
  5. 5.The Appellant shall have the costs of the Tribunal and of this appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301Section 15(4)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301Section 3(2) and Schedule, paragraphs (iii), (v), (vi), (vii)
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure ActSection 2 (proviso on definition of decree); Sections 1A and 1B
  • Constitution of Kenya 2010Article 159
  • Limitation of Actions ActNot specified (6-year period raised by Respondent)

Cases cited (6)

  • Gerry Wanyaonyi –v- George Monari Maiso
    (2013) eKLR
  • Roseline Achieng Atengi –v- Mark Odhiambo & Another
    (2005) eKLR
  • Joginder Auto Service Limited –v- Mohamed Shaffique & Another
    (2008) eKLR
  • Premier Dairy Ltd –v- Amarjit Singh Sagoo & Another
    (2009) eKLR
  • James Oluoch –v- Hamid Dine Abdi
    (2006) eKLR
  • Emmanuel Ngade Nyoka –v- Kitheka Mutisya Ngata
    (2017) eKLR
On appeal from
Business Premises Rent Tribunal
Tenant's Reference dated 27th April 2011 (Notice of termination dated 7th March 2011)
Jurisdiction invoked
Section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 - appeals from the Tribunal governed by the procedure for appeals from subordinate courts to the Environment and Land Court

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, "Adbulmajid Mohamed Adam v Nimish Shah t/a Flora Printers [2018] KEELC 3123 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3123/eng@2018-05-28

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