[1988] KECA 112 (KLR)
The Court held that the landlord could not lawfully refuse to accept possession of the premises upon termination of the tenancy on the ground of breach of the repair covenant. The tenant's obligation was limited to making repairs, which was fulfilled, and the landlord did not incur any repair costs. The only...
Source-derived case information.
- Citation
- [1988] KECA 112 (KLR)
- Parties
- Appellant: Owuor; Respondent: Kenya Medical Research Institute, Malaria and Other Protozol Diseases Research Center
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 1987
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Tenancy Termination, Mesne Profits, Breach of Repair Covenant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Owuor
Appellant
Kenya Medical Research Institute, Malaria and Other Protozol Diseases Research Center
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether a landlord can refuse to accept possession of premises upon termination of tenancy due to tenant's breach of repair covenant.
- 2 Whether the landlord is entitled to damages beyond mesne profits for the period of holding over.
Ratio Decidendi
The Court held that the landlord could not lawfully refuse to accept possession of the premises upon termination of the tenancy on the ground of breach of the repair covenant. The tenant's obligation was limited to making repairs, which was fulfilled, and the landlord did not incur any repair costs. The only compensation available to the landlord was mesne profits for the period the tenant held over, which was one month. No special or general damages were proved beyond this, and the claims for further damages were based on a mistaken view of the law. Consequently, the appeal was dismissed and the High Court's judgment was upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Gachuhi, Apaloo & Masime JJA)
CIVIL APPEAL NO 25 OF 1987
BETWEEN
OWUOR..............................................................................................APPELLANT
AND
KENYA MEDICAL RESEARCH INSTITUTE, MALARIA AND
OTHER PROTOZOL DISEASES RESEARCH CENTER ...............RESPONDENT
JUDGMNET
(Appeal from a judgment and decree of the High Court at Kisumu, Butler-Sloss J)
June 27, 1988, Gachuhi, Apaloo & Masime JJAdelivered the following Judgment.
The short point of this appeal, is whether the learned judge was right in holding, as a matter of law, that on the determination of a tenancy, a landlord cannot refuse to accept possession of the premises because the tenant committed a breach of the covenant to repair. The landlord seems to have thought that he could do so.
We are satisfied that as a matter of law, the landlord could not refuse. Indeed, counsel for the appellant now concedes that he could not do so. So the legal position in this case is that the tenant only incurs an obligation to repair. It is now conceded that such repairs as there was, was done by the tenant and so the landlord did not expend any funds of his own for this purpose.
So the only compensation that the landlord could receive would be mesne profits for any period the tenant could be shown to have held over. That was shown to be a period of one month – that is up to April 30, 1983. The learned judge awarded mesne profits – the equivalent of one month’s rent for this.
In our opinion, there is no legal liability on the respondent to pay any damages beyond this. In his memorandum of appeal, the appellant invites us to reverse the judgment and award him damages on the various heads claimed in the plaint.
We are satisfied those claims were based on a mistaken view of the law. In our opinion, not only was any special damages alleged not proved, nor has any general damages been proved beyond the cost of repairs which the tenant has met.
That being so, no good grounds exist for disturbing the judgment appealed from. We think this appeal fails and ought to be and is dismissed with costs.
Date and delivered at Kisumu this 27th day of June , 1988
J.M GACHUHI
..............................
JUDGE OF APPEAL
F.K APALOO
...........................
JUDGE OF APPEAL
J.R.O MASIME
.....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR