Adbulmajid Mohamed Adam v Nimish Shah t/a Flora Printers [2018] KEELC 3123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of appeal without certified copy of decree
The appeal was not incompetent; the certified judgment sufficed and the omission of the decree was a mere technicality.
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.
Whether the Respondent had the landlord's consent to break the wall
No consent was proved; the Respondent's evidence was contradictory and insufficient, and the Tribunal's contrary finding was unsupported.
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.
Whether tenant required landlord's consent to alter the main wall
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.
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.
Limitation of actions defence
The claim was not time barred because the landlord only learned of the broken wall shortly before issuing the notice.
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.
Legal principles established
#- 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
#- 1.The appeal is allowed
- 2.The judgment of the Tribunal dated 9th September 2016 is set aside
- 3.An order substituted dismissing the tenant's Reference dated 27th April 2011
- 4.The Landlord's Notice dated 7th March 2011 is allowed
- 5.The Appellant shall have the costs of the Tribunal and of this appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.