Mohamed Godana Jarso t/a Dal International Hotel v Odongo (Environment and Land Case Civil Suit 106 of 2017) [2024] KEELC 10 (KLR)
The bottom line
#A Kisumu landlord-tenant dispute shows courts won't compensate tenants for renovations unless the lease clearly says so, and landlords can't distrain for rent never agreed.
What this practically means
#Executive summary
#Key legal issues
#The rent payable under the lease
The rent payable was Kshs. 100,000/- per month, inferred from the three months' rent deposit of Kshs. 300,000/- and confirmed by the unchallenged court order of October 16, 2008.
The lease was poorly drafted and had no clause expressly providing for rent. The deposit recital of Kshs. 300,000/- for three months implies Kshs. 100,000/- per month. Both parties' submissions showed consensus on this figure, and the order of October 16, 2008 recording the same rent was never challenged.
Lawfulness of the distress for rent levied on July 9, 2007
The distress was partly lawful in principle (rent was due and unpaid) but unlawful to the extent it claimed Kshs. 150,000/- per month from April 1, 2005 instead of Kshs. 100,000/- per month from July 1, 2005; no leave of the Business Premises Rent Tribunal was required.
The Plaintiff admitted no rent was paid from April 2005 and no rent deposit was paid, so rent was due and the Defendant could distress without Tribunal leave. However, the Defendant could only recover lawfully due rent: the agreed rate was Kshs. 100,000/- per month from 1st July 2005, not Kshs. 150,000/- per month from April 1, 2005.
Entitlement to refund/compensation for renovations
The Plaintiff is not entitled to a refund of the renovation costs; the lease contained no express or inferable term for such recovery.
Clauses 2, 4, 5 and 9 of the lease permitted renovations and alterations but nothing suggests the Defendant would refund the costs. Express provision existed for offsetting utility bills against rent, but nothing for renovation costs. Recovering approximately Kshs. 10,000,000/- from rent of Kshs. 100,000/- over three years (a maximum of Kshs. 3,600,000/-) was improbable; the more probable intent was recovery through discounted rent.
Quantum of renovation costs (in the alternative)
Had it been necessary, the court would have held the cost of repairs and renovations at Kshs. 2,287,264/- per DW2's bill of quantities, finding no credible evidence for the claimed Kshs. 10,383,782/- and that some of the Plaintiff's documents were falsified.
The Plaintiff's claim was based on a Quanti-Bill Consult bill of quantities dated March 2006, yet renovations were complete by 22nd August 2005 - a chronological impossibility. DW2, who actually did the works, prepared a bill of quantities of Kshs. 2,287,264/-.
Legal principles established
#- A distress for rent is lawful only to the extent that it seeks to recover rent lawfully due; recovery of a rate not agreed, or of rent from a date when it was not payable, renders the distress unlawful.
- A tenant is not entitled to a refund or compensation for repairs and renovations absent an express or inferable contractual term entitling him to such recovery.
- The court cannot rewrite a contract for the parties or invoke equity to alter the parties' bargain.
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Each party shall bear its costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over a landlord-tenant/lease dispute transferred to the Environment and Land Court (suit on land known as Kisumu Municipality/Block 7/294)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Godana Jarso t/a Dal International Hotel v Odongo (Environment and Land Case Civil Suit 106 of 2017) [2024] KEELC 10 (KLR)", Case Analysis (2024). Not stated in the judgment (original High Court suit filed July 20, 2007, transferred and given current case number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/10/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.