Arfa Arfa Limited & another v Casamia Investments Limited & 2 others (Environment and Land Case E019 of 2022 & E078 of 2024 (Consolidated)) [2025] KEELC 7921 (KLR)
The bottom line
#A Kenyan court ruled Covid-19 did not excuse a tenant's unpaid rent, ordering the tenant to pay arrears after its lease frustration claim failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Covid-19 pandemic frustrated the lease agreement
No. The plaintiff had rent outstanding before the pandemic, there was no frustration clause in the lease, and the court could not tell when the plaintiff resumed business or left the premises.
The court took judicial notice of the pandemic but found the plaintiff was already in arrears when the pandemic was declared. Following the Supreme Court's guidance in Kwanza Estates, frustration must be narrowly applied, discharges a contract entirely, and cannot rest on a party's own default. Most of the outstanding rent predated the pandemic and remained payable up to the February 2020 quarter.
Whether restoration and repair costs of KShs.15,898,960 could be awarded on the counterclaim
No, because the claim was not specifically pleaded in the amended counterclaim.
The defendant sought restoration costs or an alternative payment in its counterclaim prayers, but the court found this head was not specifically pleaded. Unpleaded claims cannot be granted, so this head of the counterclaim failed even though the counterclaim otherwise succeeded.
Whether the suit between Casamia and Mohutniy should be consolidated with the lead file
The plaint by Casamia against Mohutniy was allowed as prayed; Mohutniy's arrears were unexplained.
PW1 admitted Mohutniy was in rent arrears and had locked the premises without paying rent after taking over on 1st November 2022. The court found no correlation between the frustration issue in the lead file and Mohutniy's separate default, which was unrebutted since DW1 and DW2 were not cross-examined.
Legal principles established
#- The doctrine of frustration must be invoked cautiously and operates to discharge a contract entirely, not partially or temporarily; a party invoking it must prove the frustrating event occurred without their fault
- Financial hardship caused by the Covid-19 pandemic does not automatically discharge a tenant's rental obligations
- Where a party has pre-existing arrears before the alleged frustrating event, the contract is not frustrated
Court orders
#- 1.The plaint dated 8th June 2020 is dismissed
- 2.The 1st defendant in the counterclaim to pay all the outstanding rent arrears, service charge and VAT as at 1st May, 2020
- 3.Prayer (i) to be calculated against the deposit costs of KShs.9,200,000/-
- 4.Costs of the suit and of the counterclaim to Casamia
- 5.With regard to the plaint dated 27th February, 2024 between Casamia Investments Limited and Mohutniy Africa Limited, the same is hereby allowed as prayed
- Jurisdiction invoked
- Original civil jurisdiction over lease and contract disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arfa Arfa Limited & another v Casamia Investments Limited & 2 others (Environment and Land Case E019 of 2022 & E078 of 2024 (Consolidated)) [2025] KEELC 7921 (KLR)", Case Analysis (2025). E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7921/eng@2025-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.