Wakilii

Schweitzer v Estienne and Another (Civil Appeal No. 92 of 1954)

East African Court of Appeal · [1950] EACA 35 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Kenya concerning landlord and tenant dispute over rent and privity of contract following assignment of lease
Decision
Appeal dismissed; cross-appeal allowed; respondents not liable for contractual rent as no privity of contract established

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that under section 2(1)(b) of the Kenya Increase of Rent (Restriction) Ordinance 1949, the element for furniture forms part of the standard rent of furnished premises. As the standard rent exceeded Sh. 10,000 per annum and the premises had not been rented prior to 1949, the premises were not controlled and the contractual rent applied. The term 'rented' in the Ordinance means rented by the landlord for the time being, not held under a Crown lease. The Court further held that there was no privity of contract between the appellant lessor and the respondent assignees, as the assignment did not release the original lessee from his obligations.

Outcome

Appeal dismissed; cross-appeal allowed; respondents not liable for contractual rent as no privity of contract established

Facts

The appellant leased furnished premises (Westlands Hotel) to Woodruff for five years at Sh. 26,400 per annum, with a covenant against assignment without consent. Woodruff applied to the Central Rent Control Board, which fixed the standard rent at Sh. 705 per month plus up to Sh. 150 per month for furniture. Woodruff then assigned the lease to the respondents with the appellant's written consent. The respondents tendered only the standard rent as fixed by the Board. The appellant sued for the contractual rent and possession, alleging the respondents had become his tenants by virtue of the assignment. The respondents denied privity of contract and claimed the premises were subject to rent restriction legislation. The premises were held under a Crown lease for 99 years from 1904 and had been operated as a boarding-house by the previous owner from 1946 to 1950.

Issues

  1. Whether the sum fixed by the Rent Control Board for furniture forms part of the 'standard rent' under the Increase of Rent (Restriction) Ordinance 1949.
  2. Whether premises held under a Crown lease are 'rented' within the meaning of section 1(2)(a)(i) of the Ordinance.
  3. Whether an assignment of a lease with the lessor's consent creates privity of contract between the lessor and the assignee.
  4. Whether the original lessee is released from obligations under the lease following assignment with lessor's consent.

Orders

  • Appeal dismissed with costs.
  • Cross-appeal allowed with costs.
  • Supreme Court decision maintained except as to costs of preliminary objection.
  • Appellant ordered to pay respondents the costs of the preliminary objection.

Rules and key headnotes

Landlord and Tenant — Rent Restriction — Standard Rent — Furnished Premises
Under section 2(1)(b) of the Kenya Increase of Rent (Restriction) Ordinance 1949, where premises are let furnished, the sum determined by the Rent Control Board in respect of furniture forms part of the standard rent and is not to be excluded when calculating whether the standard rent exceeds the statutory threshold.
Rent Restriction Legislation — Meaning of 'Rented'
The term 'rented' in section 1(2)(a)(i) of the Increase of Rent (Restriction) Ordinance means rented by the landlord for the time being of the premises to a tenant as defined in the Ordinance, and does not extend to land held under a Crown lease.
Assignment of Lease — Privity of Contract — Release of Original Lessee
An assignment of a lease, even with the lessor's written consent, does not create privity of contract between the lessor and the assignee unless there is a new contract by which, in consideration of the lessor releasing the original lessee, the assignee assumes responsibility for performance of the lease obligations.
Assignment — Burden of Obligations — Release of Debtor
A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to someone else; this can only be brought about by the consent of all three parties and involves the release of the original debtor.
Landlord and Tenant — Assignment of Lease — Lessor's Consent
Where a lessor's written consent to an assignment is a condition precedent to a valid assignment, the signature of the lessor on the deed of assignment means no more than that he is permitting the assignment and does not, without more, constitute entry into a new contract with the assignee.

Legislation cited (5)

  • Kenya Increase of Rent (Restriction) Ordinance 1949 s.1(2)
  • Kenya Increase of Rent (Restriction) Ordinance 1949 s.2(1)
  • Kenya Increase of Rent (Restriction) Ordinance 1949 s.5(1)
  • Kenya Increase of Rent (Restriction) Ordinance 1949 s.19(1)
  • Kenya Increase of Rent (Restriction) Ordinance 1949 s.24

Cases cited (1)

  • Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660

Full judgment

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Schweitzer v Estienne and Another (Civil Appeal No. 92 of 1954) [1950] EACA 35 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.