Hedwig-Hirt Mitterlerlehner Ulrich v Hendrick Spin [2020] KEELC 1121 (KLR)
The bottom line
#A Mombasa court dismissed a tenant's bid to force her landlord to sell, and ordered her to pay €21,960 and vacate.
What this practically means
#Executive summary
#Key legal issues
#Competency of the suit for want of a verifying affidavit sworn by the plaintiff
The suit was incompetent ab initio because the verifying affidavit was not sworn by the plaintiff, and the use of an affidavit sworn by another person is fraudulent conduct the court will not condone
Order 4 Rule 1(2) requires a plaint to be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments. The plaintiff admitted she did not sign the verifying affidavit, and PW-1 claimed to have signed it, but the plaintiff said the signature was neither hers nor her husband's. Either way, the undisputed evidence was that the affidavit was not sworn by the plaintiff. This was not a mere procedural lapse but a fraudulent institution of suit, warranting striking out.
Existence of an enforceable written lease
No enforceable lease instrument exists because the plaintiff never signed the lease and the defendant's signature was executed in the Netherlands without proper attestation
Section 3(3) of the Law of Contract Act, Cap 3 requires a contract for the disposition of an interest in land to be in writing, signed by all parties, and attested by a witness present at signing. The plaintiff admitted she did not sign the lease instrument; PW-1's signature alone appears. The defendant signed while in the Netherlands, so the purported attestation by an advocate was doubtful. The instrument therefore cannot be relied on as evidence of the lease.
Right of pre-emption and compensation for improvements
Even on the terms of the purported lease, the right of pre-emption and right to compensation expired with the lease on 31 December 2013, and compensation was only payable upon a sale to a third party
Clauses 3, 4 and 9 of the document grant the lessee priority of purchase if the lessor wishes to sell, and compensation only if the lessor sells to a third party. The document does not oblige the lessor to compensate where he does not wish to sell. The defendant stated he does not wish to sell. Further, any compensatable developments must conform to the leasehold special conditions and be made with the lessor's consent; the developments here were neither approved nor consented to and were therefore illegal.
Defendant's counterclaim for rent arrears, mesne profits and possession
The counterclaim was upheld: the plaintiff owes Euros 11,460 in rent arrears and Euros 10,500 in mesne profits for seven years, totaling Euros 21,960, and must give vacant possession
The plaintiff did not dispute that she paid only Euros 3,540 of the Euros 15,000 payable over the 10-year term, leaving Euros 11,460 outstanding. She remained in occupation after expiry on 31 December 2013 and must pay mesne profits at the demanded rate of Euros 1,500 per annum for the years 2014 to 2020, being Euros 10,500. The defendant, having permitted occupation for 10 years, is entitled to rent, mesne profits and possession.
Plaintiff's breach of the lease terms
The plaintiff was in breach for not paying rent and could not invoke the lease's benefits while breaching it with impunity
The plaintiff paid rent up to 2006 into a Swiss account and could not claim ignorance of where to pay rent, having previously paid to that account. It would be unconscionable for her to claim a right to purchase or compensation on the basis of a document she herself breached. Her claim to hold rent in a Swiss account pending the defendant's compliance was unsupported by any term of the lease.
Legal principles established
#- A plaint must be accompanied by a verifying affidavit sworn by the plaintiff; using an affidavit sworn by another person to institute a suit is fraudulent and renders the suit incompetent
- No suit may be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, with signatures attested by a witness present at signing
- Improvements on land are deemed part of the land and cannot be compensated absent an explicit agreement, and the court will not order compensation for illegal developments made contrary to leasehold special conditions and without the lessor's consent
- A right of pre-emption and a right to compensation for improvements apply only while the lease subsists, and compensation for improvements is triggered only where the lessor sells to a third party
Court orders
#- 1.Plaintiff's suit dismissed
- 2.Judgment entered for the defendant in the counterclaim in the sum of Euros 21,960 (rent arrears of Euros 11,460 plus mesne profits of Euros 10,500 for seven years)
- 3.The sum of Euros 21,960 to attract interest at court rates from 27 May 2014, the date the counterclaim was filed
- 4.Plaintiff ordered to give vacant possession within 14 days of the judgment
- 5.In default, defendant at liberty to appoint a court bailiff to evict the plaintiff and/or her servants, agents or anyone claiming possession under her
- 6.Plaintiff to pay the costs of the case to the defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over landlord/tenant and lease disputes concerning land (ELC Act; pleaded lease over CR No. 15140/1/425/Section III/Mainland North, Mombasa)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hedwig-Hirt Mitterlerlehner Ulrich v Hendrick Spin [2020] KEELC 1121 (KLR)", Case Analysis (2020). Mombasa ELC Suit (plaint filed 11 December 2013, amended 19 February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1121/eng@2020-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.