[1997] KEHC 25 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT MOMBASA

CIVIL SUIT 382 OF 1996

1. MOHAMED SHARIFF ALI

2. AHMED SHARIFF ALI..............................................................................PLAINTIFFS

-VERSUS-

KASSIM ABDALLA JUMAT/A SANAA GALLARY............................... DEFENDANT

RULING

On 3/5/1995 a "Title Deed" was issued by the Land.Registrar Mombasaunder the Registered Land Act (Cap 300) Laws of Kenya, in respect of LandTitle Number MOMBASA/BLOCK XXX1/.10. It certified that:- "Mohamed Shariff Ali and Ahmed Shariff Ali are nowregistered as the absolute proprietors of the land comprisedin the Title, subject to the entries in the register relatingto the Land-and to such of the overriding interest set out inSection 30 of the Registered Land Act as may for the timebeing subsist and affect the land."There was an encumbrance registered against the Title when it was issued.That was

"A liase dated 28/3/1991 to Kassim Abdalla Juma T/A Sanaa Gallary for 5 years and 3 months from 1/4/91 at themonthly rent of Shs.3,500/=, office Shop on ground floor."It was registered on 24/4/1995 - about 9 days before the Title was issuedto Mohamed and Ahmed.- J2 -At the time the Lease was entered into, Mohamed and Ahmed were notthe owners of the property. The owners were Hatimali A bdeali Taherall,Mustafa Abdeall Taherali and Saifuddin Abdeali Taherali.

The lease term was to expire at the end of 5 years and 3 months from 1/4/91that is to say on 30/6/1996. But the property was sold and transferredto MOhamed and Ahmed subject to that lease on 3. 5.95. Amongst other provisions it had been agreed between Sanaa Gallery and the former owners that SanaaGallery would:-

",... Yield up the leased premises with the fixtures and additions thereto (other than the removeable fixtures or fittingsadded by the Lesee) at the determation of the term hereby createdin such state of repair as shall be in accordance with the Lessees covenants herein before contained."Upon purchasing the property, Mohamed and Ahmed served notice on SanaaGallery on 27. 3.96 (that they should handover vacant possession of theproperty upon expiry of the Lease term. They threatened that they wouldnot accept any rental payments after June 1996 but would instead chargeShs.2000/= per day as damages from 1. 7.96 if vacant possession of the propertyis not handed over as notified.

Sanaa Gallery responded on 11. 7.96 stating that they did not enterinto any lease agreement with Mohamed & Ahmed and asserting that they wereprotected tenants under Chapter 301 Laws of Kenya since they had been payingrent on a monthly baiss. They refused to vacate.

One week later Mohamed & Ahmed came to Court and filed this suit on18. 7.96. They pleaded ownership of the property and the written lease whoseterm had already expired. They prayed for vacant possession and for Mesneprofits at the rate of Shs.2000/= per day from July 1996 until possessionis delivered up.

Sanaa Gallery took up their assertions in the defence filed on 7. 8.96that there was no priority of contract between them and Mohamed & Ahmed.They also pleaded the lease itself was not enforceable because it was notin the prescribed form and was not registered in the prescribed names.It could not therefore grant any interest in the property. They assertedthat they continued to occupy the premises even after the expiry of theterm with the consent of Mohamed & Ahmed and were therefore periodic tenantsprotected under Chapter 301 Laws of Kenya. For that reason the High Courthas no business entertaining the suit for lack of jurisdiction.

As an alternative pleading without derogating from the legal objectivesSanaa Gallery averred that there has never been any lease signed betweenthem and Mohamed & Ahmed and therefore the two cannot purport to terminateor decline to renew a non-existent lease between them. They protestedthe rate of Mesne profits demanded as punitive and asserted that the plaintiffswere only entitled to monthly rent after 30. 6.96.

Mohamed and Ahmed saw no substance in such defence and felt that theywere entitled to summary Judgment for vacant possession of the propertyas prayed in their plaint and whether there should be an order for paymentof Mesne profits.

For the Applicants it was urged by Mrs. Ali that upon the purchaseand transfer of the property all interests and encumbrances were also trntransferred. She cited S. 91 of the Registered Land Act (RLA) on the effectof transfer on agreements in leases-and S. 93 on Transfer subject to leaseand submitted that when property is transferred it is transferred subjectto the lease. There is no need to notify the Lessee. Mrs. Ali also referredto S.28 of the Act on the Rights of the prioprietor, of land and submittedthat those rights are absolute and only subject to the Leases and other,encumbrances shown in the Register and to the overriding interests underS.30 of the Act none of which are applicable here. So that, once the proposition that a lease need, not be registered for. Cap 301 to apply. Itneed only be written and for a period, not exceeding 5. years. • The writtenlease in this matter was for a period in excess of 5 years and was validbetween the parties whether or not. it was registered. She also cited CA2/78 BACHELORS BAKERY VS. WESTLANDS SECURITIES LTD.for the proposition that a Landlord is entitled to possession,of property at the end of the term without notice. It was stated in that case that:-"the Landlord & Tenant Act does not have the effect of assuming jurisdiction over tenancies created by an_agreement.in writing by which the parties have contracted for a term exceeding five years,"Mrs. Ali prayed for grant of the order sought on those grounds.

Sanna Gallery opposed(the application through Mr. Kimani, their advocate.Although Mr. Kimani abondoned the contention made in the statement of defencedefence that this court has no jurisdiction to deal with the matter, henevertheless assailed the application on technical grounds before revertingto the Replying Affidavit which under 0 32 r(2) should be the basis forshowing that the defendant should have leave to defend. Only one groundof opposition is raised in the grounds filed on 2. 12. 96. That is

"There are triable issues."The technical grounds raised are firstly that the Affidavit, sworn in Supportof the Application is not supported by proper Exhibits and there fore inthe absence of those exhibits the affidavit remains a bare assertion whichshould not be relied on. The exhibits referred to are the Title Deed exhibited'to show ownership of the property by Mohamed and Ahmed and .the Registeredlease between Sanaa Gallery and the former owners of the property. Thefows of the objection was that these were only photocopies and not originalsand they did not accord with the requirements ofthe evidence Act production on production of documents evidence. Mr. Kimani cited S.2 of the EvidenceAct to show that it applies to Affidavits and S.68 to show that the originalsshould have been attached to the Affidavit. He also attached the leasedocuments on the basis that the document annexed is not the one that wasstamped during the Registration process in which event it would not bein compliance with S.19 of the Stamp Duty Act and is thus inadmissiblein evidence. Again even if the lease document was registered, it was notin the prescribed form and is therefore not admissible in evidence andit cannot confirm any interest in the land.

As for triable issues which must await the main trial Mr. Kimani submittedthat the question of priority of contract is a serious one for trial. Thatis because the lease is not between the plaintiffs and the defendants.The other triable issue is whether by acceptance of rent between 27. 3.96and 30. 6.96, the plaintiffs consented to the continued occupation of thepremises by the defendants. He referred to the Replying Affidavit whichlists down the other triable issues as

- whether or not the holding over is with or withoutthe consent of the plaintiff.

- whether or not a periodic tenancy has been created as aresult of holding over.

- whether or not the act of accepting rent afterissuance of the plaintiff's Advocates notice can beconstrued as consent or acceptance of the defendant as a tenant.

- What is the legal effect of non-transfer of the lease tothe plaintiffs.

- whether Shs. 2000/= per day as Mesneprofits is exhorbitant.Mr. Kimani then brought on the question of "priority of Estate" as theonly common bond between the parties. By this I understand that the partiesheld interests in the same property which were mutually exclusive.A transferee of a parcel of land according to him cannot interfere witha sitting tenant unless by a separate agreement the rights of the leasehave also been transferred. Unless there is such an agreement, the transferorhas no interest at all in the lease. In this case it has not been shownthat there was an express transfer of the Lease to the plaintiff and inthat case they cannot sue on that lease.

For those reasons Mr. Kimani submitted that the defendant should haveunconditional leave to defend the suit. He cited CA 35/77 CONTINENTALBUTCHERY LTD. VS. SAMSON MUSILA NDAIWA for the proposition that the plaint,defence, the counterclaim and reply to defence if any and Affidavits insupport of and in reply as well as all relevant issues and circumstancesare all proper material for consideration in an application of this nature.

Finally Mr. Kimani submitted that if the defendants objections areoverruled and the application is granted, the court will consider that The defendants have been carrying on business in the premises and any ordergiven would show the business of balance. He requested for a 12 monthperiod within which the defendants would vacate.

I have anxiously considered these submissions and all the materialplaced before me. I agree with Mr. Kimani and the proposition made onthe authority cited by him that all such documents and circumstances beconsidered. But it is also stated that each case shall be considered onits own merits.

Madan J.A. gave the reason for that:

"It is not difficult to understand the meaning ofthe straightforward provisions of Order 35. What isdifficult is to apply the effect of the meaning todifferent applications for summary judgment each ofwhich presents its own set of facts, its own set ofcircumstances and its own set of controversies betweenparties. What is difficult is to construe the truepurport of the Affidavits to reply which each time cameup with new maneuvers, new logistics, new strategy andtactics with the object of obtaining leave to defend... sometimes a shabby skirmish...... There is no limit to the ingenuity of defendants aided by advocates, in offeringnew material to slip out of the provisions of Order 35. There is also no limit to the acumen of Judges to deal with theLegal jumble."Some of that ingenuity is, with respect, quite evident in this application.For I am persuaded that the application is well founded as there are notriable issues of fact worth submitting for full trial.

I see no substance in the technical objections raised that the Applicationcontains only have assetions of the ownership of the property by the plaintiffs/Apand the Lease agreement. The Evidence Act is applicable to Affidavitssubject to any:, Act or any rules of court. The Civil Procedure Rulesmake provision for proof of facts by way of Affidavits under Order 18 andOrder 35 under consideration here provides for the names of makingthe application. If it was the desire of the Defendants to see the originalsof the documents served on them with the application, there are provisionsfor demanding that such documents be produced and or inspected before the hearing of the application. Annexures to Affidavitsfiled with applications under 0 35 are invariably photocopies which unlessthere are express objections made in the Affidavit in reply, remain primafacie evidence of the fact they intend to prove. I see no pleading inthe defence nor averment in the Replying Affidavit that the property didnot belong to the plaintiffs as absolute proprietors. I see no basis forobjecting to the lease document either. It was clearly stamped beforeit was lodged for Registration and was duly Registered on 25. 4.95. Thereis no evidence before me to be contrary. At all events I consider theseobjectives to be purely academic. That is because the Defendants themselveshave sworn in their Reply that they paid rents to the plaintiffs for themonths of April and May 1996 and it is indeed on that basis that they seeka finding that the plaintiffs consented to their occupation of the premisesas their tenants after the expiry of the lease. Such an averment cannotbe made by one who considers either a total stranger.

I overrule the technical objections and find on the evidence beforeme that the property in issue was lawfully owned by the plaintiffs by wayof purchase and transfer as at 3. 5.95. I also find that there was an existinglease before such purchase between the defendants and the previous ownerson the terms stated in that lease which was registered in the encumbrancessection against the Title.

Having so found, the issues posed as triable issues become issuesof law which can be summarily determined. The first is whether there waspriority of contract between the plaintiffs and the defendant, this maybe considered together with the submission that there was only a"priority of Estate" between the parties and nothing more. The submissionI believe is made because on the face of the Lease document, the partiesin this suit are not the persons from whose communications with each other the document resulted. On this basis, the lease agreement cannot conferrights or impose obligations arising under it on any person except theparties to it. That is the essence of priority of contract. But it isonly any general rule which has various statutory and equitable exceptionsand situations in which a third party can acquire rights under a certaincontract.

In this particular case I am satisfied that the provisions of theRegistered Land Act provide a complete answer to the issue raised. Inthis respect I agree with the submission of Mrs. Ali that upon the Registrationof the plaintiffs as the proprietors of the land they acquired absoluterights under S.28 of the Act subject only the encumbrance registered againstthe Title; in this case.

The lease ran its full course upto 30. 6.96. Rent was paid by thedefendants and accepted by the plaintiffs upto that date. It was lawfulrent payable and receivable under the terms of the Lease. But in March1996 the plaintiffs gave notice to the defendants that they would not renewthe lease and wanted vacant possession upon expiry of the Lease. In pointof fact there was no provision in the lease for any option to renew thelease. On the contrary there was a specific clause, reproduced above,that the defendants would yield up the leased premises. The notice served would in the circumstances be a superfluity. It is also a superfluitybecause under S.64 RLA once the term of a lease expires the lease determinesabsolutely unless a claim be made thereafter for holding over under S.52. Acceptance of rent after determination of the lease is evidence of consent.

The Affidavit of the Defendant says rent was paid and accepted betweenthe date of the Notice and the date of expiry of the lease. This it isasserted signified consent and therefore there is a triable issue. This cannot be so. As I have stated above the notice given was unnecessarybecause the lease term was expiring in any event. The defendants wereliable for payment of rent upto the end of the term. There can be no casefor holding over before 30. 6.96. There is no averment or Affidavit evidencefrom the defendants that they paid any rent or any rent was accepted bythe plaintiffs after 30. 6.96. I accept the plaintiffs Affidavit evidencethat they did not accept or receive any such rent. Indeed they had madetheir intentions of not accepting the rent three months before the termended and filed this suit 18 days after refusal to handover vacant possession.The triable issues posed are therefore, in my view a red-herring.

The only issue that would have been triable is whether the plaintiffsare entitled to Shs.2000/= per day as mesne profits as these would havebeen in the"nature of damages. But the claim was abandoned at the hearinghereof. I do not find it unreasonable for the plaintiffs to claim mesneprofits at the rate of the rental payments on the property until vacantpossession is given.

I am largely in agreement with the submissions of Mrs. Ali in thismatter and I see no reason why the plaintiffs cannot have the orders theyseek. I grant the application for vacant possession as prayed and orderthat mesne profits at the rate of Shs.3,850/= per month from 1. 7.96 bepaid to the plaintiffs until vacant possession is given.

It remains for me to consider whether I should exercise my inherentpowers as requested by Mr. Kimani to grant the defendants a period of 12months to vacate.

It was clearly the responsibility of the defendants to handover vacantpossession of the leased premise's at the expiry of the term of Lease. Theyhad notice of that 5 years and 3 months before they took possession ofthe premises. As the court of Appeal said in JESSE MWAURA VS HAJRABAISULEIMAN CA3 3/85 (UR).

"when a lease is expired the tenants responsibility isnot at an end; for if the premises are in possession ofan undertenant the landlord may refuse to acceptpossession and hold the original Lessee liable for theLessor is entitled to receive absolute possession at theend of the term."The defendants refused to discharge this responsibility on untenable groundsand forced the plaintiffs to seek the orders of this court. They havenow occupied the property for a period of about 11 months without the consentof the Landlord and without making any payments for such occupation. Inthese circumstances I am not inclined to grant a further period of 12 monthsto the defendants before the plaintiffs can fully enjoy the fruits oftheir investment.

However if the mesne profits upto and including 30. 9.1997 are fullypaid within the next 14 days, the defendants may have upto 30. 9.97 to handover vacant possession. In default of such payment, the orders hereinshall take effect forthwith.

Dated at Mombasa this 23rd day of May 1997.

P.N. WAKI

JUDGE