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Court of AppealPartially AllowedCivil Appeal No. 242 of 1999

WILDLIFE LODGES LIMITED vs JACARANDA HOTEL LIMITED [1999] KECA 127 (KLR)

Court of Appeal
17 December 1999
1,895 words in judgment
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a landlord cannot use summary judgment to forfeit only part of a leased property when genuine disputes exist that deserve a full trial.

What this practically means

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Executive summary

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The respondent, Jacaranda Hotel Limited, leased premises at Westlands, Nairobi (including the Pizza Garden restaurant) to the appellant, Wildlife Lodges Limited, for ten years under a Lease Agreement containing covenants against unauthorised alterations, use of inflammable substances and acts jeopardising statutory consents, with a re-entry/forfeiture clause. Alleging breaches, the respondent applied under Order XXXV rule 1 and Order XII rule 6 of the Civil Procedure Rules for summary judgment or judgment on admissions. Oguk J granted summary judgment, ordering forfeiture of the lease in respect of the Pizza Garden portion only (L.R. No. 209/8370) and immediate vacant possession, while sparing the main hotel premises. The appellant appealed, contending triable issues existed and that the lease could not be severed; a cross-appeal was also lodged. The Court of Appeal, in a single judgment of the court (Omolo, Tunoi and Owuor JJ.A), allowed the appeal. It held that the appellant's affidavit challenging the architect's inspection report and denying the alleged alterations disclosed issues fit for trial, so summary judgment should have been refused, adopting Madan JA's dictum in Continental Butchery Ltd v Samson Musila Nthiwa. On severance, the Court held that forfeiture means loss of all interest in the property and a clause effecting it must be construed strictly; the lease could not be dismembered, so the cross-appeal also succeeded. The ruling and decree of 28th October 1999 were set aside, the motion dismissed, and the suit remitted for trial, with no order as to costs at any level.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's defence raised triable issues such that summary judgment should not have been entered
  2. 2.Whether the appellant was in breach of the covenants in the Lease Agreement and whether the right of forfeiture had arisen and become exercisable
  3. 3.Whether the lease could be severed so as to decree forfeiture and vacant possession over part only of the demised premises

Key legal issues

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01

Whether summary judgment was properly entered despite a defence raising triable issues

Holding

The appeal was allowed because the appellant's affidavit and pleadings disclosed issues fit for trial; summary judgment should have been refused.

Reasoning

The Court held that the learned Judge ought not to have ignored the appellant's affidavit which challenged the architectural report and disclosed matters requiring interrogation at trial. Relying on Madan JA's dictum in Continental Butchery, all pleadings, affidavits and circumstances are material on a summary judgment application. The dispute turned on the construction of many clauses of the Lease which the appellant denied breaching, so a case fit for trial had been made out.

p. 3
02

Whether the lease could be severed and forfeiture decreed over part only of the demised premises

Holding

The lease could not be severed; forfeiture effects a loss of all interest in the property and the clause must be construed strictly, so the cross-appeal succeeded.

Reasoning

Both appeal and cross-appeal complained that the Lease Agreement could not be severed or dismembered. The Court agreed, holding that forfeiture means loss of all interest in the property spoken of and that a clause effecting it must be construed strictly, citing Stroud's Judicial Dictionary. The High Court's order of forfeiture and vacant possession over Pizza Garden only was therefore wrong in law.

p. 4

Legal principles established

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  • On an application for summary judgment, the pleadings, affidavits and all relevant issues and circumstances are proper material for consideration; where a defence discloses triable issues, summary judgment must be refused.
  • Forfeiture means the loss of all interest in the property and a clause effecting it must be construed strictly; a lease containing such a clause cannot be severed so as to forfeit part only of the demised premises.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and decree of the High Court dated 28th October, 1999 set aside
  3. 3.The respondent's Notice of Motion (amended) dated 3rd June, 1999 dismissed
  4. 4.No order as to costs in the superior court
  5. 5.Cross-appeal allowed with no order as to costs
  6. 6.No order as to costs of the appeal
  7. 7.The suit to be disposed of by trial in the superior court in the normal manner

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 839 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the Ruling and Decree of the High Court)

Relief refused

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Costs to either party in the superior court, on the cross-appeal and on the appeal

The Court refrained from making any order as to costs, leaving each party to bear its own

p. 4

Costs

No order as to costs in the superior court; cross-appeal allowed with no order as to costs; no order as to costs of the appeal (each party to bear its own costs).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result we allow the appeal, set aside the ruling and decree dated 28th October, 1999 and the Notice of Motion (amended) on 3rd June, 1999 is ordered dismissed.
p. 4Final orders - appeal allowed and summary judgment set aside
The cross-appeal is allowed with no order as to costs. Also, there will be no order as to costs of the appeal. The suit shall be disposed of by trial in the superior court in the normal manner.
p. 4Final orders - cross-appeal allowed, suit remitted for trial
Forfeiture means the loss of all interest in the property spoken of and a clause effecting it must be construed strictly
p. 4Strict construction of forfeiture clauses
Nothing is immaterial which helps justice to be done. Nothing is extraneous which helps to prevent injustice being done.
p. 3Material for consideration on summary judgment applications

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "WILDLIFE LODGES LIMITED vs JACARANDA HOTEL LIMITED [1999] KECA 127 (KLR)", Case Analysis (1999). Civil Appeal No. 242 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/127/eng@1999-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.