Dorris Morgan v F.Stubenitsky [1977] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a landlord's rent claim because the tenancy papers failed to clearly identify the tenant, the rent, and the lease term.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a note or memorandum in writing sufficient to satisfy section 3(3) of the Law of Contract Act
- 2.Whether the documents (advertisement, letter and endorsements) read together spelled out the parties, subject-matter, demise, term and consideration
- 3.Whether the judge erred in excluding Shs 3500, being rent for June 1974, from the computation of damages
Key legal issues
#Sufficiency of the written note or memorandum under section 3(3) of the Law of Contract Act
The advertisement, letter and endorsements read together failed to identify the tenant or the consideration and term with clarity, so the requirements of section 3(3) were not satisfied and the suit could not be brought.
The court adopted the five-element test (parties, subject-matter, demise, term, consideration) from Long v Millar and Timmins v Moreland Street Property Co. The letter was written on World Bank notepaper stating the employer would pay the rent, creating ambiguity as to who was the tenant; no consideration was offered by Dr Stubenitsky personally; and the term was vague (two years expectation versus six-month advance payment, with the advertisement silent on duration).
Whether recovery of one month's rent in lieu of notice from a previous tenant should reduce damages recoverable from the prospective tenant
Law JA held it should not, since the liabilities of two separate and distinct tenants are separate and distinct matters; but the point did not arise given the dismissal.
Law JA reasoned that the payment received from the previous tenant was in the nature of damages for that tenant's breach of a contract to which the respondent was a stranger, and the respondent could not take its benefit. However, because liability failed under section 3(3), the point was academic. Wambuzi JA expressly declined to consider it.
Legal principles established
#- A note or memorandum under section 3(3) of the Law of Contract Act must spell out in clear terms the parties, the subject-matter, the demise, the term and the consideration; documents may be read together to establish these.
- Where the memorandum is ambiguous as to who was to be the tenant and the tenant offered no consideration, the requirements of section 3(3) are not satisfied and no suit lies on the contract.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote separately, holding the written agreement did not satisfy section 3(3) of the Law of Contract Act because the respondent could not be established as the tenant or party to the consideration.
I find it impossible to say that the respondent undertook to pay the rent, which leads to the inescapable conclusion that he was not a party to the consideration, and not a lessee or tenant.p. 5
Wrote the judgment
Wrote separately agreeing the appeal must fail; found the agreement lacked clarity on who the tenant was and on consideration and term.
In these two respects I think that the agreement did not satisfy section 3(3) of the Law of Contract Act, and the judge in the court below came to the correct decision.p. 4
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal (East African Court of Appeal practice); no specific constitutional or statutory provision stated in the judgment
Relief refused
#Damages for breach of the alleged tenancy agreement, including the Shs 3500 for June 1974 rent
The agreement did not satisfy section 3(3) of the Law of Contract Act, so no binding contract existed; the damages point did not arise
Costs
Appeal dismissed with costs (the appellants to pay the respondent's costs of the appeal).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorised by him to sign it
I find it impossible to say that the respondent undertook to pay the rent, which leads to the inescapable conclusion that he was not a party to the consideration, and not a lessee or tenant.
In these two respects I think that the agreement did not satisfy section 3(3) of the Law of Contract Act, and the judge in the court below came to the correct decision.
As the other members of the Court agree, it is so ordered that the appeal be dismissed with costs. Appeal dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorris Morgan v F.Stubenitsky [1977] KECA 8 (KLR)", Case Analysis (1977). Civil Appeal (High Court suit arising from plaint filed 10th February 1975). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1977/8/eng@1977-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.