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ELCAllowedNot stated in the judgment (Plaint dated 12th October 2017, filed 19th October 2017)· [2019] KEELC 2580 (KLR)

Nassau Limited v Hillingdon Limited [2019] KEELC 2580 (KLR)

Environment and Land Court
11 July 2019
JOJ. O. Olola
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ended a resort sub-lease and awarded the landlord over Kshs 2 million in unpaid service charges because the tenant never defended the case.

What this practically means

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Executive summary

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Nassau Ltd, the registered lessee of land Portion No. 603 (Original No. M6/22) Malindi on which it developed the Blue Marlin Resort, sued Hillingdon Ltd seeking a declaration that the Defendant breached a Sub-Lease Agreement by failing to pay Service Charges of Kshs 2,071,090.00 in respect of eleven apartments in Blocks E and F; a declaration that under clause 5.1 of the Agreement the sub-lease was determined and the Plaintiff entitled to re-enter and take possession; an order directing the Defendant to surrender the apartments; and costs. The Sub-Lease Agreement dated 14th October 2010 leased 13 apartments to the Defendant effective 1st October 2008 for a consideration of Euros 100,000, obliging the Defendant to pay service charges computed annually by the Plaintiff's auditors and permitting the Plaintiff to re-enter on court order and determine the sub-lease upon default exceeding 30 days after notice. The Defendant, served by substituted service through the Standard Newspaper pursuant to an application allowed on 6th December 2017, neither entered appearance nor filed a defence, and the suit proceeded by formal proof. PW1, Ruggero Sciommeri, a director of the Plaintiff, adopted his witness statement and produced the Sub-Lease Agreement and a bundle of invoices and statements evidencing the arrears from 31st October 2014 to 27th April 2017. Finding the Plaintiff's pleadings, testimony and submissions uncontroverted, the court held the case proved on a balance of probability under Section 107 of the Evidence Act and entered judgment for the Plaintiff as prayed in the Plaint, with costs of the suit awarded to the Plaintiff.

Key legal issues

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01

Proof of breach of sub-lease through non-payment of service charges in an undefended suit proceeded by formal proof

Holding

The Plaintiff proved its case on a balance of probability; the Sub-Lease Agreement dated 14th October 2010 was produced, invoices and statements showed outstanding service charges of Kshs 2,071,090.00, and the Defendant, though served by substituted service, neither entered appearance nor filed a defence, leaving the averments uncontradicted.

Reasoning

The court considered the pleadings, the testimony of PW1 (a director of the Plaintiff who adopted his witness statement), the Sub-Lease Agreement (Pexh. 2) and the bundle of invoices and statements (Pexh 3). The Defendant was served by substituted service through the Standard Newspaper following an application allowed on 6th December 2017 but did not respond. The averments therefore stood uncontradicted and unchallenged, and with the documentary evidence the claim was proved to the standard required by Section 107 of the Evidence Act, warranting judgment as prayed.

p. 2

Legal principles established

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  • Where a defendant, though served, neither enters appearance nor files a defence, the plaintiff's uncontroverted pleadings and testimony, if supported by evidence, suffice to prove the case on a balance of probability under Section 107 of the Evidence Act.

Court orders

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  1. 1.Judgment entered for the Plaintiff as against the Defendant as prayed in the Plaint
  2. 2.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Evidence ActSection 107
Jurisdiction invoked
Original civil suit; no specific constitutional or statutory provision invoked as basis of jurisdiction

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, "Nassau Limited v Hillingdon Limited [2019] KEELC 2580 (KLR)", Case Analysis (2019). Not stated in the judgment (Plaint dated 12th October 2017, filed 19th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2580/eng@2019-07-11

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