Parkway Investment Limited v Dedan Kimathi University of Technology (Civil Appeal 6 of 2020) [2023] KEELC 838 (KLR)
The bottom line
#A landlord who locks out a tenant loses rent claims, and leases without a termination clause cannot be ended early — the Environment and Land Court dismissed the landlord's appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the lease was terminable by notice otherwise than by breach or effluxion of time
The lease contained no termination clause other than by breach or effluxion of time; the preambular clause relied on by the Respondent was expressly excluded from construction, so the lease was not terminable by the notice
The court applied the four-square rule: parties are bound by the express written terms and courts cannot re-write contracts. Although the clause-and-headings schedule referred to determination otherwise than by effluxion of time, the parties expressly agreed that clause and sub-headings do not form part of the lease and shall not be used in its construction. The trial magistrate therefore erred in holding the lease terminable by notice. Ground 1 of the appeal succeeded.
Whether the 23rd December 2015 termination notice amounted to breach of the lease
Yes, the notice was issued contrary to the terms of the lease and constituted breach; however, the Appellant's entitlement to damages was defeated by her own locking of the premises
Having found the lease terminable only by breach or effluxion of time, the notice was in breach. Damages would ordinarily follow, but immediately the Respondent vacated, the Appellant locked and padlocked the premises, denying the Respondent access even to remove partitions. This self-help amounted to constructive termination and, applying Section 77 of the Land Act principles on rent and possession, deprived the Appellant of any claim to rent for March, April and May 2016.
Whether the Appellant was entitled to rent for the last year of the tenancy
No; the claim failed because the Appellant herself terminated the lease by letter dated 31st May 2016
The last-year rent claim is an aspect of damages for breach of contract. But by terminating the lease herself on 31st May 2016, the Appellant brought the contractual relationship to an end, leaving no lease capable of being breached. The claim was therefore mounted in a vacuum and was correctly declined by the trial magistrate.
Whether the Respondent was entitled to refund of the security deposit of Kshs. 705,000/=
Yes; there being no rent in arrears and no liability attaching to the Respondent, the trial magistrate's order for refund was affirmed
The Respondent paid the security deposit and all rent up to February 2016, facts not disputed by the Appellant. The rents claimed for March to May 2016 were not payable as the premises had been locked. With no arrears or liability, the Respondent was entitled to the refund, and the trial court's decree in that respect was legally sound and correct.
Legal principles established
#- A court cannot re-write a contract between the parties; parties are bound by the express terms of their written contract
- Where parties reduce their intention to writing, extrinsic evidence may not be adduced to contradict, vary or add to the terms of the document (the four-square rule)
- Where a lease for a fixed term contains no termination clause, early termination amounts to a breach of contract entitling the offended party to damages
- Rent is only payable for the period the tenant enjoys possession; where the landlord unlawfully locks out the tenant, the landlord cannot claim rent for the period of dispossession
- Where the landlord herself terminates the lease, there ceases to exist a lease capable of being breached, extinguishing claims premised on breach (such as last-year rent)
Court orders
#- 1.The appeal vide Memorandum of Appeal dated 18th February 2020 be and is hereby dismissed
- 2.The Respondent shall only be entitled to 2/3 of the costs of the appeal
- 3.The monies in the escrow account in the joint names of the advocates for the parties (Kshs. 705,000/= being the refund of the security deposit) be released and paid out to counsel for the Respondent for onward transmission to the Respondent
- 4.The limb of the trial judgment relating to refund of the security deposit is affirmed
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 3812 of 2018 (originally Milimani ELC No. 1334 of 2016)
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the judgment of the Chief Magistrate's Court (Memorandum of Appeal dated 18th February 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parkway Investment Limited v Dedan Kimathi University of Technology (Civil Appeal 6 of 2020) [2023] KEELC 838 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/838/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.