Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NYERI

(CORAM: VISRAM, KOOME & OTIENO-ODEK, JJ.A.)

CIVIL APPEAL NO. 248 OF 2012

KASTURI LIMITED………….………………….……………. APPELLANT

AND

NYERI WHOLESALERS LIMITED ............................. RESPONDENT

(Appeal against the Ruling of the High Court of Kenya at Nyeri

(Sergon, J.) dated 23rd April, 2010

in

HCCC No. 109 of 2009)

*******************

JUDGMENT OF THE COURT

1. On or about 2nd April, 2004, the appellant entered into a lease agreement to rent part of the
respondent’s premises known as Nyeri Municipality/Block III/66, to operate as a shop and
residence. Two other lease agreements for the same space and bearing the same date of 2nd
April, 2004, were executed by the parties albeit with different sums indicated as monthly rental
sum. In each of these lease agreements, the tenancy was to expire on 15th April, 2009. The
appellant took possession of the demised premises and claims that two of lease agreements
were a forgery. Prior to expiry of the lease, the respondent gave a notice in writing that the lease
shall not be renewed.
2. By a plaint dated 3rd July, 2009, the appellant sought a declaration that the notice to vacate dated
19th January, 2009, issued by the respondent be deemed to be of no effect. The respondent filed
a defence and counterclaim to the suit.
3. The gist of the respondent’s defence is that the lease granted to the appellant was for a term of
5 years with effect from 15th May, 2004, and it expired on 14th April, 2009, by effluxion of time.
The respondent acknowledged issuing to the appellant a notice to vacate dated 19th January,
2009. In its counterclaim, the respondent inter alia prayed for an order of vacant possession of
the premises and in default the appellant to be forcefully evicted from the premises.

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 Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR

4. The respondent took out a Notice of Motion dated 14th January, 2010, pursuant to Order XXXV
rules, 1, 2, 5 and 8 of the Civil Procedure Act seeking summary judgment and an order for
vacant possession and eviction of the appellant from the demised premises. The respondent
submitted that there was nothing to go for trial in relation to the demised premises because a
notice had been given to the appellant that the lease shall not be renewed and the tenancy term
had expired on 14th April, 2009.
5. The learned judge delivered a ruling dated 23rd April 2009 and entered summary judgment in
favour of the respondent; an order for vacant possession and or forceful eviction of the appellant
from the demised premises was issued. Aggrieved by the ruling, the appellant lodged the present
appeal to this Court.
6. The appellant’s grounds of appeal:

i. the learned judge erred in law in entering a partial summary judgment and issuing a
partial decree,

ii. that the central triable issue in the various leases between the parties is forgery and
summary judgment ought not to have been entered based on affidavit evidence until the
issue of forgery and the amount of rent payable was determined in a full trial.

7. The firm of Messrs Gori & Ombongi Advocates represented the appellant while learned counsel
Mr. Geoffrey Mahinda appeared for the respondent in this appeal.
8. Counsel for the appellant elaborated on the grounds of appeal with emphasis that the learned
judge erred in entering summary judgment and issuing a partial decree for vacant possession of
the suit premises. It was submitted that the judge ought to have waited for hearing of the main
suit and determine all issues between the parties; that the respondent has been attempting to
unlawfully enrich itself through altering the amount due as monthly rent for the premises and
forging many unlawful leases; that there are three lease agreements between the parties each
dated 2nd April, 2004; that in the first lease, the monthly rent is given as Ksh. 40,000/= which the
appellant is faithfully paying; that in the second lease titled supplementary lease the monthly rent
is indicated Ksh. 60,000/= while a further lease indicates the monthly rent as Ksh. 100,000/=. The
appellant submitted that each of the subsequent leases are a forgery and never purported to
cancel the previous lease; that the learned judge erred in entering summary judgment when the
correct lease between the parties and the correct monthly rent had not been determined in a full
trial; that summary judgment should have been put on hold until the main suit was heard and
determined to enable the judge make an informed decision.
9. Counsel for the respondent opposed the appeal; he submitted that tenancy between the parties
expired on 14th April, 2009; that the appellant entered the demised premises based on a lease
whose term had expired; that a notice dated 19th January, 2009, had been given to the appellant
indicating that the lease shall not be renewed; that the judge did not err in entering summary
judgment as the appellant had no defence to the counterclaim; that the parties had a reason for
signing and executing three lease agreements all dated 2nd April 2004; that the appellant does
not contest and challenge the first lease in which the rental sum is given as Ksh. 40,000/= per
month; that under the first lease, the tenancy expired on 14th April 2009 and the appellant has no
defence or triable issue to refuse to give vacant possession of the premises; that the learned
judge did not err in entering summary judgment as the respondent’s counterclaim was in two
parts; the first part sought vacant possession and the second part is for determination of what
amount of monthly rent is payable for the rented premises. Counsel for the respondent cited the
case of Nairobi Golf Hotels (K) Limited – v- Lalji Bhimji Sanghani Builders & Contractors,
Civil Appeal No. 5 of 1996 in support of his submissions.
10. This is an interlocutory appeal and we have considered the rival submissions by counsel and

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 Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR

examined the record of appeal. Being a first appeal, it is our duty to analyze and re-assess the
evidence on record and reach our own conclusions. (See Selle -vs- Associated Motor Boat
Co., [1968] EA 123). Both counsel confirmed to this Court that the hearing of the main suit is on-
going before the High Court. The only issue for determination before us is whether the learned
judge erred in entering summary judgment and issuing orders for vacant possession of the
demised premises.
11. Summary judgment in favour of the respondent was entered under the provisions of Order XXXV
of the Civil Procedure Rules. In an application for summary judgment under Order XXXV rule
1, it is the duty of the defendant/respondent to demonstrate that he should have leave to defend
the suit; the duty is limited to showing that there is a prima facie existence of bona fide triable
issues or that there is an arguable case. On the other hand, the person applying for summary
judgment under Order XXXV has the duty to show that the defence is a sham. In the case of
Continental Butchery Ltd- v- Samson Musila Nthiwa, Civil Appeal No. 35 of 1977, this Court
stated:

“With a view to eliminate delays in the administration of justice which would keep litigants out of
their just dues or enjoyment of their property the court is empowered in an appropriate suit to
enter judgment for the claim of the plaintiff under the summary procedure provided by Order 35
subject to there being no triable issue which would entitle the defendant leave to defend. If a
bona fide triable issue is raised the defendant must be given unconditional leave to defend but
not so in a case in which the court feels justified in thinking that the defence raised is a sham”.

12. In the instant case, the appellant was put in possession of the rented premises by the
respondent. The tenancy is stated to be five years; notice was given to the appellant that the
lease shall not be renewed; the appellant on his part acknowledges and admits existence of the
tenancy agreement between the parties; the duration of the tenancy as five years is not disputed;
the receipt of notice of non-renewal of the lease is also not disputed. A tenant who has been put
into possession cannot challenge the title of the landlord (See E.H. Lewis & Son. – v- Morelli,
(1948) 2 All ER 1021). Upon the grant of a lease or tenancy, both the landlord and tenant are in
general estopped from denying the validity of the transaction. In the instant case, neither the
landlord nor the tenant is permitted to assert that the tenancy which they created is invalid. It is
also trite law that a lease cannot be extended by implication where an express notice for non-
renewal has been given.
13. The appellant submitted that upon expiry of the lease on 14th April, 2009, a tenancy at will arose.
In law, a tenancy at will arises whenever a tenant with the consent of the landlord, occupies qua
tenant on the terms that either party can determine the tenancy at will. In the present case, there
is no consent on the part of the respondent who is the landlord. A tenant cannot become a tenant
at will by refusing to vacate the demised premises when an express notice of non-renewal has
been given. From the facts of this case, we find that the appellant is neither a tenant at will nor a
tenant at sufferance. A tenancy at sufferance arises where a tenant, having entered upon the
land under a valid tenancy, holds over without the landlord’s assent or dissent. (See Remon – v-
City of London Real Property Co. Ltd., (1921) 1 KB 49, 58). In the present case, the appellant
is holding over the demised premises without the landlords assent and with the respondent’s
dissent and as such, the appellant is not a tenant by sufferance. By holding over the demised
premises, the appellant is obligated to pay compensation for use and occupation of the premises
and is liable to eviction.
14. We have examined the pleadings to determine if the appellant has any bona fide defence to the
respondent’s counterclaim for vacant possession of the premises. The tenancy agreement
between the parties expired on 14th April, 2009, and the respondent expressly intimated that the
lease shall not be renewed. The lease between the parties came to an end by effluxion of time

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 Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR

and the appellant has no bona fide defence to the claim for vacant possession of the premises.
The dispute between the parties on the amount of rent payable is not a bona fide defence to a
claim for vacant possession. The dispute on rent payable is distinct from the claim in rem for
vacant possession of the demised premises. The counterclaim for vacant possession is an action
in rem while the claim for mesne profits and rent due and payable is an action in persona against
the appellant. The two claims in the counterclaim are distinct and separate and we find that the
learned judge did not err in holding that the appellant did not have a bona fide defence for the
action in rem. We note that the learned judge did not enter summary judgment for mesne profit or
rent due and the respondent did not apply for summary judgment for mesne profits or rent
payable. It is our considered view that summary judgment could not properly be entered for the
claim for mesne profit and rent payable because these are disputed liquidated claims.
15. On the counterclaim for vacant possession of the premises, we cite with concurrence the dicta by
Lord Halisbury in Jacob – v- Booths Distillery Co. 85 LTR at 262, where he stated that “there
are some things too plain for argument”. In the present case, it is plain that the tenancy
agreement between the parties expired on 14th April, 2009, and has never been renewed; it is
also plain that the appellant received a notice for non-renewal of the tenancy. We concur with the
learned judge that the appellant has no triable issue in the counterclaim for vacant possession. It
is the duty of the courts to ensure that no individual is prevented from taking possession and or
enjoying their property. A tenant cannot impose or force him/herself/itself on a landlord. In the
instant case, when the lease between the parties expired, it was incumbent upon the appellant to
give vacant possession. The respondent legitimately exercised its right to seek summary
judgment and an order for vacant possession and or forcible eviction of the appellant. We have
no doubt that in entering summary judgment against the appellant, the learned judge acted
properly and cannot be faulted.
15. This appeal has no merit and is hereby dismissed with costs to the respondent.

Dated and delivered at Nyeri this 30th day of July, 2014.

ALNASHIR VISRAM

………………………………………

JUDGE OF APPEAL

MARTHA KOOME

…………………………………….

JUDGE OF APPEAL

OTIENO-ODEK

……………………………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

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 Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR

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