Melisa Awour Odera v Keringet Estates Limited [2021] KEELC 1454 (KLR)
The bottom line
#A Tiwi Beach sublease holder was given 90 days to pay arrears and 12 months to finish her house to avoid losing the property.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of the service charge covenant
The plaintiff was liable to pay service charge at the minimum rate of Kshs. 23,000/= per month from execution of the sublease, jointly with Dr. Gaeckle before the transfer, without need of invoices
Clause 2 stipulated a minimum service charge of Kshs. 23,000/= per month where private residential units did not exceed three. Written particulars were only required where a higher charge was stipulated. Nothing in the sublease made service charge contingent on completion of the house or occupation, and the defendant in fact provided written accounts on 6 July 2014 and through its advocates on 1 December 2014. The obligation was joint while the lease was held jointly.
Legality of the transfer of the half share to the plaintiff
The transfer of Dr. Gaeckle's half share to the plaintiff pursuant to a divorce court order was not a breach of the sublease notwithstanding the absence of the lessor's consent
Although Clause 3(e) and Section 55 of the Land Registration Act required the lessor's written consent to dealings with leases, the transfer here was not a voluntary sale but an act in obedience to a court order in the German divorce proceedings. The court ordered the transfer and the lessor cannot veto what a court has ordered; if aggrieved, it should have applied to that court. The lessor's advocates had acknowledged the divorce award without threatening action.
Right of forfeiture and whether the sublease was forfeited
A contractual right of forfeiture existed under Clause 5(a) despite exclusion of Sections 53-56 RLA, but it was ambiguous whether the lease was ever actually forfeited since there was no proof of repossession, denial of access, or registration of the determination
Clause 7 of the sublease excluded Sections 53-56 of the (repealed) Registered Land Act, but parties could provide an equivalent contractual right; Clause 5(a) allowed re-entry and repossession upon unremedied breach after 30 days' notice. However, forfeiture determines the lease and the lessor takes possession; here the defendant never took actual possession, allowed the plaintiff access, and never registered a determination, leaving ambiguity.
Relief against forfeiture and appropriate orders
Exercising discretion under Section 76 of the Land Act, the court gave the plaintiff a chance to avoid forfeiture by paying arrears within 90 days and completing the house within 12 months, with a regulated sale machinery in default
Both the RLA (Section 59) and the Land Act (Section 76) allow relief against forfeiture, and the court has wide discretion without laid-down guiding principles. The plaintiff had made a heavy investment but refused to pay service charge and breached the construction covenant; it was unfair for her to burden the defendant with expenses while the development remained incomplete. Conditional orders balancing both interests were therefore fashioned.
Proof of the counterclaim for contractor's fees and building costs
The claims for Euro 9,000 contractor's fees and Kshs. 841,153/= building costs were not proved and were dismissed
The alleged building contract was oral with no reference for its terms and conditions. There was no proof that Euro 9,000 was agreed as contractor fees or that Kshs. 841,153/= was spent on the plaintiff's behalf; no receipts were brought. The defendant was not a registered contractor and building was not shown to be among its core businesses, so no fee could be inferred from business practice or regulated fees.
Legal principles established
#- A minimum service charge fixed in a lease is payable without invoice or particularisation; written particulars are only needed where the charge exceeds the stipulated minimum
- A transfer of a joint lessee's share effected pursuant to a court order (divorce settlement) cannot be vetoed by the lessor under a consent covenant; the court order overrides the terms of the lease
- Excluding statutory forfeiture provisions without substituting elaborate contractual provisions leaves grey areas as to how forfeiture operates
- Actual forfeiture requires more than issuing a forfeiture notice; the lessor must demonstrate repossession such as taking possession, denying access, or registering the determination of the lease
- Under Section 76 of the Land Act the court has wide discretion to grant or refuse relief against forfeiture, with no laid-down guiding principles, looking at all surrounding circumstances
- An oral contract may be enforceable, but the claimant must still prove the agreed sums; thin evidence of unparticularised sums cannot sustain judgment
Court orders
#- 1.The plaintiff to pay the accrued service charge, plus any proportion of rent/charges or other expenses, within 90 days, service charge being a minimum of Kshs. 23,000/= per month while private dwelling houses do not exceed three
- 2.Thereafter the plaintiff to continue paying service charge at the minimum of Kshs. 23,000/= per month unless circumstances change so that the service charge reduces
- 3.The plaintiff to embark on completion of the house within a reasonable completion period of 12 months
- 4.In default, the defendant to be at liberty to exercise its right of forfeiture, determine the lease and take possession; upon such forfeiture the defendant to pay the plaintiff at least the forced sale value of the premises, assessed by an agreed valuer or the Government Valuer within Kwale County, with prescribed sale machinery if the defendant cannot pay
- 5.The plaintiff's prayer for mesne profits dismissed
- 6.The plaintiff's declarations sought in the plaint declined/subsumed by the orders made
- 7.In default of compliance, the plaintiff to forfeit her shares in the defendant company; she to execute a share transfer, failing which the Deputy Registrar to execute it to the defendant or the buyer of the premises
- 8.The defendant's counterclaim for Euro 9,000 contractor's fees and Kshs. 841,153/= building costs dismissed for want of proof
- 9.The correct stamp duty to be paid on the true contract sum of Kshs. 15,000,000/= including any penalties and/or interest, and a restriction to be entered in the register of the sublease indicating liability to pay stamp duty
- 10.The plaintiff to surrender the erroneous title issued for the whole 12.5 acres; the Land Registrar to find a way of distinguishing the sublease from the head lease so they do not bear the same description
- 11.The plaintiff to pay the costs of the main suit and of the counterclaim, with a set-off of taxed costs against amounts due to the plaintiff upon repurchase by the defendant or sale to a third party in default
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the sublease dispute concerning land parcel Kwale/Tiwi Beach Block/338
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Kakamega v Mwangi (Environment and Land Case E025 of 2022) [2026] KEELC 5117 (KLR)[2026] KEELC 5117 (KLR)22 Jul 2026
- Kenindia Assurance Company Ltd v Kipnyekwei t/a Nyekwei & Company Advocates (Environment and Land Appeal E033 of 2022) [2026] KEELC 2694 (KLR)[2026] KEELC 2694 (KLR)7 May 2026applied
- County Government of Kakamega v Njuguna (Environment and Land Case E017 of 2022) [2025] KEELC 4704 (KLR)[2025] KEELC 4704 (KLR)25 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Melisa Awour Odera v Keringet Estates Limited [2021] KEELC 1454 (KLR)", Case Analysis (2021). Not stated in judgment (plaint filed 12 April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1454/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.