Emerg Investments Limited v Kenjap Motors Limited
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the agreement - lease or licence
The agreement was a licence, not a lease, as the defendant did not have exclusive possession
The court applied the Black's Law Dictionary and Land Act definitions and held that the agreement permitted the defendant to operate a motor bazaar business without exclusive possession. Clause 19 reserved the plaintiff's right to sell or develop the property, requiring the licensee to vacate on 14 days' notice, reinforcing the licence character.
Lawfulness of termination by notice absent a termination clause
The defendant lawfully terminated the licence by issuing a three-month notice; no breach occurred
Relying on Agriner Development Ltd and Winter Garden Theater, the court held a licence is prima facie revocable and terminable on reasonable notice. Since Clause 19 allowed the plaintiff to terminate on notice, the converse right was deemed available to the defendant. The three-month notice was adequate.
Claim for rent for the unexpired licence period
Rejected; the licence was effectively terminated on 30/04/2019 and all rent due had been paid
The plaintiff's own witness admitted rent to April 2019 was paid via post-dated cheques which were honoured. Since termination was proper, compelling the defendant to pay rent for a period it never occupied would amount to unjust enrichment, an outcome courts frown upon.
Removal of fixtures and breach of Clause 17
No breach; the removed items were temporary fixtures installed by the defendant before the licence term, not developments made during the term
Clause 17 barred removal of developments made during the licence term. The plaintiff made no developments during the term. The cabro paving and roof removed were fixed before the 2019 agreement and were temporary items; the permanent stone wall was left intact. The quicquid plantatur maxim did not apply to these temporary items.
Legal principles established
#- A licence without a termination clause is liable to be terminated upon reasonable notice being issued
- If one party is entitled by the agreement to terminate on notice, the converse right is deemed to extend to the other party
- The principal distinction between a lease and a licence is exclusive possession
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over disputes relating to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emerg Investments Limited v Kenjap Motors Limited", Case Analysis (2023). Environment & Land Case 41 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17592/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.