PBM Nominees Limited v Uchumi Supermarkets Limited [2020] KEELC 1418 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear rent disputes and awarded a landlord over Kshs 61 million based on the tenant's own written admissions.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a claim for rent arrears arising from a sub-lease, where the defendant argued the claim was a mere civil debt for the High Court
The ELC has jurisdiction; the claim arises from breach of a lease relating to use and occupation of land, and the court followed Nakumatt Holdings over Kangethe as the latter concerned mortgages
Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over disputes relating to rents, use and occupation of, and title to, land. The Kangethe decision concerned mortgages, whereas Nakumatt concerned an identical landlord-tenant rent claim with pending insolvency proceedings. Applying Trans World Safaris, the court resolved the conflict in favour of Nakumatt. Even under Kangethe's criteria, the breached contract was a lease relating to use of land.
Whether the letters dated 25/4/2018 and 8/5/2018 were privileged without prejudice correspondence
The contention was rejected; neither letter bore a without prejudice endorsement nor suggested it in its text
The defendant claimed the admissions were made in without prejudice settlement discussions and were privileged. The court examined the letters and found nothing on their face to indicate without prejudice status, so they could properly ground judgment on admission.
Whether the plaintiff was entitled to judgment on admission for Kshs 61,304,565.60
Yes; the debt was duly acknowledged and admitted, unconditionally, in the Deed and the letters, and there was no evidence of payment
The defendant did not dispute execution of the Deed of Acknowledgment of Debt nor the two letters acknowledging the debt. Once the plaintiff produced these, the burden shifted to the defendant to show payment or lawful grounds for non-payment, which it did not discharge. The unexplained figure of Kshs 147,610,693.20 and the question of lease surrender and the 50% discount, however, required trial.
Legal principles established
#- A lease-related claim for rent and service charge arising from use and occupation of land falls within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and Section 13 of the ELC Act.
- Letters relied on as admissions must bear a 'without prejudice' endorsement or otherwise show on their face that they were made on that basis to attract privilege.
- Judgment on admission may be entered only where the admission is plain, clear, unconditional, obvious and unambiguous, and where the debtor has not shown payment or lawful grounds for non-payment.
Court orders
#- 1.The defendant's preliminary objection dated 12/7/2018 is dismissed for lack of merit
- 2.Judgment on admission is entered for the plaintiff against the defendant for the sum of Kshs 61,304,565.60
- 3.The rest of the plaintiff's claim shall proceed to trial
- 4.The plaintiff has leave to forthwith enforce the judgment on admission
- 5.The plaintiff shall have costs of the preliminary objection and the notice of motion dated 18/7/2018
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PBM Nominees Limited v Uchumi Supermarkets Limited [2020] KEELC 1418 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1418/eng@2020-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.