Lenana Archade Limited v Malili & 2 others (t/a Spice Liquor Store) (Environment and Planning Civil Case E002 of 2023) [2024] KEELC 7475 (KLR)
The bottom line
#A Kenyan court ruled that a signed lease overrides earlier chats and promises: the tenants had to close their lounge because it breached the lease's written terms.
What this practically means
#Executive summary
#Key legal issues
#Whether oral negotiations and representations could vary the written under-lease restricting use to a liquor store only
They could not; the written lease prevailed over prior WhatsApp negotiations and the Defendants were bound by its terms
The court found the WhatsApp messages showed the Plaintiff had by September 2022 signalled that a lounge was problematic, which should have put the Defendants on notice to confirm the user clause before signing. Citing the parol evidence rule under sections 97 and 98 of the Evidence Act and the authorities on sanctity of written contracts, the court held the executed lease governed the parties notwithstanding prior negotiations or trust.
Whether the lease was vitiated by duress
No duress was proved
Apart from text messages, no defence witness gave evidence of any force or wrongful threat by the Plaintiff's representative. The evidence of DW4 and DW5 about coincidental meetings on the signing day did not amount to coercion. The pressure allegedly exerted by PW3 did not meet the legal definition of duress, so the lease was validly executed.
Whether the lease was vitiated by misrepresentation
Misrepresentation did not lie because the Defendants knew of the restrictive clause before signing
The Defendants admitted reviewing the draft lease in May 2022 and raising issues on the user clause; they were therefore aware the restriction was contentious before executing the lease. Their remedy was to decline signing until the clause was revised. Once they signed, the binding contract could not be voided for a misrepresentation within their prior knowledge, however bad the bargain.
Whether clause 1(f) of the head lease violated the Competition Act
The argument failed as unpleaded and premature; the court lacked first-instance jurisdiction
The court held the issue was neither pleaded nor supported by evidence, and that the Competition Authority of Kenya is the forum of first instance for restrictive trade practice complaints. The Defendants were required to exhaust remedies under the Competition Act before invoking the court, applying the doctrine of exhaustion.
Whether the Defendants were in breach of the under-lease
Yes; operating the bar/lounge breached clauses 1(f), 4(j) and 5(k)
Having found the lease valid and binding, the court held the Defendants' operation of a lounge in shop 13 contravened the permitted user clauses. However, general damages were refused for want of proof of loss, as the Plaintiff led no evidence quantifying its losses from the breach.
Legal principles established
#- Where parties reduce an agreement into writing, the written agreement supersedes prior oral discussions and negotiations.
- Courts are not permitted to re-write contracts between parties.
- Evidence of oral agreements is inadmissible to contradict the terms of a written contract, save for exceptions such as fraud, intimidation, illegality or mistake.
- Complaints of restrictive trade practices under the Competition Act must first be exhausted before the Competition Authority before approaching the court.
Court orders
#- 1.A declaration is issued that the Defendants are in breach of the underlease dated 24th October, 2024
- 2.Mandatory injunction directing the Defendants to remove their fixtures and fittings pertaining to the operation of the lounge from the impugned premises within 90 days of the judgment
- 3.Thereafter a permanent injunction restraining the Defendants from operating and/or carrying on the business of a lounge without a written consent of the head lessor
- 4.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over the lease/land dispute (provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lenana Archade Limited v Malili & 2 others (t/a Spice Liquor Store) (Environment and Planning Civil Case E002 of 2023) [2024] KEELC 7475 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7475/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.