Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 463 of 2018· [2025] KEELC 5389 (KLR)

Mohamed & another (t/a Sws Aculaser Weight Loss Institute) v PBM Nominees Limited (Environment and Land Case 463 of 2018) [2025] KEELC 5389 (KLR)

Environment and Land Court
17 July 2025
OAO. A. Angote
8,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed Nairobi West Hospital's fraud claim against Sarit Centre and ordered the hospital to pay over KShs 1.65 million in rent arrears plus interest.

What this practically means

#

Executive summary

#
The Plaintiffs, long-standing tenants of Unit SF16 at Sarit Centre, sued the Defendant (their landlord) seeking a declaration that a sub-lease dated 3rd April 2018 was null and void for fraud, and an order cancelling or preventing its registration. Their case was that they had executed a sub-lease on 11th January 2017 which the Defendant fraudulently altered and backdated, superimposing their signatures onto a 2018-dated document which was then franked for stamp duty and lodged for registration. The Defendant denied fraud, asserting that dating a conveyance on the date the last party signs is standard practice, and counterclaimed for rent and service charge of Kshs. 1,654,310/- plus 2% monthly interest after the Plaintiffs failed to retake the premises following a fire of 4th May 2018. The court framed two issues: whether the Defendant fraudulently altered the sublease, and whether the Plaintiffs breached it by failing to pay rent. Applying the strict standard of proof for fraud, and noting the absence of document examiner evidence and the Plaintiffs' admission of the genuineness of their signatures, the court found no fraud. It held that the unregistered sublease operated as a binding contract under Section 36(2) of the Land Registration Act, and that the Plaintiffs, having failed to retake possession, terminate the lease, or pay rent, were liable on the counterclaim. The suit was dismissed, the counterclaim allowed with joint and several judgment of Kshs. 1,654,310/- plus interest, and costs awarded to the Defendant.

Key legal issues

#
01

Whether the Defendant fraudulently altered the sublease

Holding

No fraud proved. The two documents were identical save for dates, the Plaintiffs' signatures were genuine, and the dating of the lease on 3rd April 2018 was explained as conventional conveyancing practice to avoid stamp duty penalties.

Reasoning

The court compared the two subleases and found them identical except for the front-page dates. Fraud must be strictly proved; the Plaintiffs adduced no document examiner to prove superimposition of signatures. The conveyancing practice of dating a document when the last party signs was accepted as believable, and PW1 admitted the signatures on the 3rd April 2018 lease were genuine. The circumstantial timing (after the fire) proved materiality of dates but not fraud.

p. 12
02

Whether the Plaintiffs breached the sublease by failing to remit rent and service charge

Holding

Yes. The unregistered sublease operated as a binding contract under Section 36(2) of the Land Registration Act; the Plaintiffs failed to retake possession or terminate the lease and owed Kshs. 1,654,310/-.

Reasoning

Non-registration does not defeat enforceability inter partes. Clause 14.1 entitled the landlord to elect to rebuild, and the lease was not determined by the fire. The letter of offer and clause 7.2 placed responsibility for partitioning on the tenants, who produced no clause obliging the landlord to restore partitions. The Plaintiffs neither issued a breach notice nor terminated the lease, yet admitted receiving unpaid invoices. The tabulated arrears of Kshs. 1,654,310 were proved.

Legal principles established

#
  • Fraud must be specifically pleaded, particularized and strictly proved, and cannot be left to be inferred from facts
  • Allegations of fraud require a standard of proof higher than a balance of probabilities, though not beyond reasonable doubt
  • An unregistered lease instrument operates as a contract binding inter partes under Section 36(2) of the Land Registration Act
  • A court cannot rewrite a contract between parties; parties are bound by their terms unless coercion, fraud or undue influence are pleaded and proved

Court orders

#
  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendant's Counterclaim is allowed
  3. 3.The Plaintiffs are ordered to pay jointly and severally the sum of Kshs. 1,654,310/- inclusive of interest accruing at the rate of 2% per month from 6th September 2019 until payment in full
  4. 4.Costs of the suit and the Counterclaim to be borne by the Plaintiffs

Authorities

#

Legislation

  • Evidence ActSections 107, 109 and 112
  • Land Registration ActSections 36(1) and (2), 43(1) and (2), 53
  • Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act)not specified
  • Law of Contract ActSection 3(3)
  • Land ActSection 65(1)(e)

Cases cited (11)

  • Said Ben Sultan Bin Mohamed v Jokha Binti Sultan Bin Sahim El Muisking
    [1955] I EACA 273
  • Rogan-Kamper v Lord Grosvenor [No. 2]
    [1976-80] I KLR 558
  • Mega Garment Limited v Mistry Jadva Parbat & Co. [EPZ] Limited
    [2016] KECA 172 (KLR)
  • National Bank of Kenya Ltd v Pipeplastic Samkolit [K] Ltd
    [2002] 2 EA 503
  • Curtis v Chemical Cleaning & Dyeing Co. Ltd
    [1951] 1 All E.R. 631
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G & F) 742
  • Bachelor's Bakery Ltd v Westlands Securities Ltd
    [1982] KLR 366
  • Chon Jeuk Suk Kim & Another v E.J. Austin & 2 others
    [2013] eKLR
  • Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to leases over land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed & another (t/a Sws Aculaser Weight Loss Institute) v PBM Nominees Limited (Environment and Land Case 463 of 2018) [2025] KEELC 5389 (KLR)", Case Analysis (2025). ELC No. 463 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5389/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.