Ismail Rahimtulla Trustees Registered & another v Joint Administrators-Spencon Kenya Limited (Under Administration) & 2 others (Environment and Land Case Civil Suit 375 of 2017) [2024] KEELC 5586 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of failure to file a defence
The suit proceeded as formal proof but the burden of proof remained on the Plaintiffs, who had to prove their case to the required standard despite the absence of a defence
The court acknowledged the claim was undefended but noted the 2nd defendant was represented and cross-examined. Relying on Gichinga Kibutha v Caroline Nduku, the court held that uncontroverted evidence does not automatically entitle a claimant to judgment; the claimant must still discharge the evidentiary burden under Section 107 of the Evidence Act.
Enforceability of the guarantee
Clause 5(a) of the lease imposed joint and several liability on the 2nd and 3rd Defendants to pay on demand rent and sums due under the lease, and demand having been made and unanswered, the guarantee was enforceable
The guarantors covenanted to pay on demand rent and all sums due from the lessee upon default. A demand notice dated 10.1.2017 was served and never answered. Following Ebony Development, liability crystallised upon default by the principal debtor. However, the guarantee did not extend to the car park charges, and the court could not re-write the contract.
Quantum of arrears
The Plaintiffs' tabulated figures were unreliable, so the court independently computed rent arrears of Ksh.8,768,175 and service charge of Ksh.2,373,477 from October 2015 to October 2016, totaling Ksh.11,141,652
The court found the interest computations at page 134 muddled, mixing lease rent with car park charges. Falling back on the lease itself, which fixed monthly rent at Ksh.674,475 and service charge at Ksh.120,000, the court computed quarterly rent for five quarters plus the service charge, excluding car park sums covered by no guarantee and involving a non-party entity.
Mesne profits
Mesne profits of Ksh.11,466,075 awarded for 17 months' occupation after expiry of the lease at the contractual monthly rent of Ksh.674,475
The 1st Defendant remained in occupation after the lease expired on 31.10.2016 until the vacant possession order of 29.3.2018, a period of 17 months. Mesne profits are awarded in place of rent, and the court applied the contractual monthly rate for that period.
Jurisdiction
The jurisdictional objection was res judicata, having been settled by the court's own ruling dated 24.9.2020
The 2nd defendant again contested jurisdiction, but the court noted it had already determined in the ruling of 24.9.2020 that the dispute fell within its mandate, the dominant claim relating to land use with rent recovery incidental. The court declined to revisit the issue.
Legal principles established
#- An undefended claim does not relieve the claimant of the burden of proof
- A guarantor becomes liable upon default by the principal debtor and must pay the guaranteed sum on demand
- The court cannot re-write a contract between the parties
Court orders
#- 1.Judgment entered for the Plaintiffs against the 2nd and 3rd Defendants jointly and severally for Ksh. 11,141,652 as special damages for unpaid rent on the lease and service charge
- 2.Mesne profits of Ksh. 11,466,075 for the 17 months of unlawful occupation from November 2016 to March 2018
- 3.Costs of the suit to the Plaintiffs
- 4.Interest at court's rate on costs, special damages and mesne profits, calculated from the date of delivery of the judgment
- Jurisdiction invoked
- Jurisdiction settled by ruling dated 24.9.2020 as a dispute falling within the mandate of the Environment and Land Court (land use claim); no specific constitutional/statutory article quoted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ismail Rahimtulla Trustees Registered & another v Joint Administrators-Spencon Kenya Limited (Under Administration) & 2 others (Environment and Land Case Civil Suit 375 of 2017) [2024] KEELC 5586 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5586/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.