Susan Mukami Kamwati & another v Elite Paka Service Limited
The bottom line
#Two Nairobi apartment owners lost their case because their sale agreements allowed the developer's construction, and they couldn't prove breach or trespass.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant breached the Sale and Lease Agreements by demolishing adjacent blocks, excavating common areas and obstructing parking
No breach proved. The agreements expressly contemplated erection of additional apartments and a gym; the Plaintiffs' photographic evidence was unconnected to the allegations and no expert evidence was called.
Clause 5.1 and Recital B of the Sale Agreements disclosed that the vendor would erect additional apartments and a gym. The Plaintiffs therefore had to prove that the works went beyond what was agreed and damaged their block. Their photographs were extracted from an unexplained record, taken by Premier Valuers who were not called, lacked a section 106B certificate, and showed no correlation with the alleged destruction of stairways or common areas. No expert evidence controverted the Defendant's claim that Block C's stairway was separate.
Whether the Plaintiffs were registered as shareholders of the management company
The claim failed because the Plaintiffs' own CR12 showed they were registered shareholders with one share each.
Clause 6.2 of the Sale Agreements entitled each purchaser to one share in the Management Company upon registration of the Lease. The Plaintiffs' Leases were registered on 27th December 2012, and the CR12 they produced confirmed their registration as shareholders. The pleaded breach - failure to register them as shareholders - was therefore unsupported by their own evidence.
Whether the Defendant trespassed on the Plaintiffs' property
No trespass proved; the Plaintiffs own only their apartments, and no evidence showed entry onto their specific apartments or stairways.
Trespass is an injury to a possessory right and requires proof of entry by the tortfeasor. The Plaintiffs are registered owners only of Apartments 12 and 18 in Block C, not the whole property. Common areas belong to all leaseholders jointly and are managed by the Management Company. No evidence showed the Defendant entered the Plaintiffs' specific apartments or stairways, and the claim on common areas was not proved.
Whether unpleaded issues (fraudulent charging of the mother title and failure to transfer reversionary interest) could be determined
They could not be considered as they were not pleaded; in any event they would fail - fraud was not specifically pleaded and proved, and the reversionary interest claim was premature as not all apartments had been sold.
Parties are bound by their pleadings and relief not founded on pleadings will not be given, save where parties raise and address unpleaded issues and leave them to the court. Even within that exception, fraud must be specifically pleaded and proved, which was not done. Clause 7 of the Sale Agreement required transfer of the reversion within 90 days of registration of the last Lease, and the Defendant's evidence that not all apartments had been sold was uncontested.
Legal principles established
#- Courts interpret and enforce contracts as written; they cannot rewrite contracts for parties
- A party alleging breach must prove it on a balance of probabilities; photographic evidence must be connected to the allegations
- Relief and evidence must be founded on the pleadings; unpleaded issues cannot be determined unless the parties leave them to the court
- Fraud must be specifically pleaded and proved
- Trespass to land is a tort against possession; the proper plaintiff is the person with title or possession, and entry must be proved
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.The Plaintiffs to pay the Defendant's costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land and leases (Article 162(2)(b) Constitution / ELC Act) - suit concerning apartments, leases and common areas on L.R 209/10521/1, Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Mukami Kamwati & another v Elite Paka Service Limited", Case Analysis (2023). Environment & Land Case 1377 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20292/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.