High Preference Properties Ltd & another v Muturi (Environment & Land Case 20 of 2015) [2022] KEELC 2781 (KLR)
The bottom line
#A Kenyan court dismissed both a tenant's suit and a landlord's counterclaim over expired Nairobi shop leases, with each side paying their own costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs breached clauses 3(n), 3(o) and 3(p) of the lease agreements by permitting exhibitionists/third parties to occupy and use the premises without the landlord's prior written consent
Yes — the Plaintiffs were in breach. The leases contained express provisions barring transfer, subletting, parting with possession or use by third parties without written consent; no such consent was given, and the lease contained no clear provision preserving the exhibitionists' occupation.
The court examined clauses 3(n) and 3(o) which expressly prohibited transfer, subletting, parting with possession, and permitting use by other third parties without prior written landlord consent. Although the Plaintiffs argued the exhibition shops pre-existed the lease and did not amount to subletting, the court held they were still 'third parties'. The Defendant denied ever giving consent, written or otherwise. The court reasoned that had the parties intended the exhibitionists to remain, nothing stopped them from expressly stating so in the lease. Absent such a provision and any consent, breach was established.
Whether the Plaintiffs validly exercised the clause 7 option to renew the leases, entitling them to renewal
No — although the Plaintiffs had a right to exercise the option to renew, renewal was not automatic; it had to be accepted by the Defendant, who lawfully declined to renew in view of the Plaintiffs' breach. A tenant cannot impose or force himself on a landlord.
The court accepted that clause 7 gave the tenant an option to renew provided intention was expressed three months before termination. However, exercising the option did not crystallize a renewed lease: acceptance by the landlord was required, particularly where the tenant was in breach. Guided by Kasturi Limited v Nyeri Wholesalers Limited and Brand City Limited v United Housing Estate Limited, the court held the Defendant acted lawfully in declining renewal by letter dated 19th August 2014. This finding was fatal to the Plaintiffs' claims for reinstatement and injunction.
The effect of the Defendant's failure to call any witness or adduce evidence in support of his defence and counterclaim
The Defendant's defence and counterclaim remained mere allegations with no evidential value; the counterclaim was not proved and was dismissed.
The Defendant closed his case without calling any witness, opting only to file written submissions. Relying on Billsah Matiangi v Kisii Bottlers Limited and the line of authority including Janet Kaphiphe Ouma v Marie Stopes International and Edward Muriga v Nathaniel D. Schulter, the court held that a party who asserts must prove under sections 107 and 108 of the Evidence Act. Although the Plaintiffs' evidence therefore stood uncontroverted, this could not save their own unproved suit; it did, however, doom the counterclaim.
Who should bear the costs of the suit and counterclaim
Each party to bear their own costs, given that neither the Plaintiffs' claim nor the Defendant's counterclaim succeeded.
The court applied the general rule under the proviso to Section 27 of the Civil Procedure Act that costs follow the event, but noted that the Plaintiffs' suit had been dismissed while the Defendant had equally not succeeded on his counterclaim. In these circumstances, the just exercise of discretion was to direct that each party bear their own costs of the proceedings.
Legal principles established
#- A tenant's option to renew a lease is not automatic; it must be accepted by the landlord, and a tenant cannot impose or force himself on a landlord, particularly where the tenant is in breach of the lease covenants.
- A court cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.
- Where a plaintiff gives evidence but the defendant fails to call any witness, the plaintiff's evidence stands uncontroverted and the statement of defence remains mere allegations — and this applies equally to an unproved counterclaim.
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but where neither party succeeds entirely, each party may be directed to bear their own costs.
Court orders
#- 1.The Plaintiffs' suit is dismissed with no orders as to costs
- 2.The prayers in the Defendant's counterclaim are declined with no orders as to costs
- On appeal from
- null
- null
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute touching on leased land (L.R. No. 209/1820, Nairobi), exercised in the first instance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "High Preference Properties Ltd & another v Muturi (Environment & Land Case 20 of 2015) [2022] KEELC 2781 (KLR)", Case Analysis (2022). Not stated in the judgment extract (originating plaint, amended 7th May 2021; prior interlocutory ruling of 13th March 2015; related Court of Appeal Civil Appeal No. NAI 91 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2781/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.