Abdulkarim v. Juma Civ. App. 6-T-70; 17/7/71; Bramble J.

Abdulkarim v. Juma Civ. App. 6-T-70; 17/7/71; Bramble J.

The appellant agreed to sell his shop plus goods in it to the respondent. The two rooms plus the shop and store were to be rented y the respondent from the owner of the premises. The respondent did not start any business because he did not get possession of the two rooms in which to sleep, but he got possession of the shop and store. He sued for damages for failure by appellant to put him in possession alleging loss of profit. The appellant counterclaimed for rent water charges and possession of the premises. In the lower court judgment was given for the respondent and appellant’s counterclaim in as far as if concerned rent, electricity and water charges was dismissed. Appellant appealed.

Held: (1) There was no intention to give the respondent vacant possession of the two rooms (2) “The renting of the two rooms and shop can best be interpreted from the agreement as an expression of intention by the parties. After subsequent consultations and discussions the appellant secured a lease of the premises with the landlord granting his consent to a sublet to the respondent. The rent was fixed at Shs. 200/- per month. The respondent said that he signed a lease which does not seem to have been put in evidence but was attached to the defence as annexure. “B” in that lease the whole of the premises was demised to him by the appellant for a term of one year at a rental of Shs. 200/- per month. The respondent never got possession of the two rooms. In Dharas & Sons v. Elys Ltd. 1963 Ed. p. 573 Udo Udoma, C. J. following the English authorities held that a person who lets premises impliedly undertakes to give possession them. In that case the plaintiffs agreed to let a shop and basement store to the defendants. By agreement the plaintiffs retained the basement store to the defendants. By agreement the plaintiffs retained the basement store up to a particular date and gave possession of the shop to the defendants. After the agreed date the plaintiffs refused to give up possession of the store. The plaintiffs sued for damages for breach of tenancy agreement; damages being expressed as rent for the unexpired period of the tenancy. The suit was dismissed on the grounds that by willfully refusing give vacant possession of the store after the greed date the plaintiff had committed a breach of the tenancy agreement and the action to recover rent was not maintenable in law.” (3) “The right to vacant possession to the respondent arose under the lease. The failure to give vacant possession was because the rooms were occupied by someone else. The trial magistrate impliedly rejected the appellant’s evidence that the respondent had agreed to allow the person to remain and he was justified in so doing from all the circumstances of the case. If the appellant gave an undertaking for vacant possession and quiet enjoyment while a third person was in occupation it was at his own risk. The court following the decision quoted above held that the appellant was in breach of the tenancy agreement and the claim for rent was not maintainable. I see no reason to disagree. The charges for water and electricity were not proved and the claim failed.” (4) Appeal dismissed.