Bell & another v I. L. Matterello Limited

The court construed section 13(2) of the Environment and Land Court Act, which enumerates disputes the ELC may hear, including those relating to land, contracts and instruments granting enforceable interests in land. It found nothing in that provision donating to the ELC mandate over landlord-tenancy disputes concerning premises leased for running a commercial enterprise such as a bar and restaurant. The substratum of the dispute was commercial, not a land title or use question, so the High Court was properly seized.

Neither the deposit refund nor exemplary damages were pleaded. However, the deposit featured in the evidence of both sides, and the refund was consequential to the finding that nothing was outstanding, so it could be awarded under the general prayer 'any other relief'. Exemplary damages, by contrast, were not pleaded and there was no principle permitting the court to introduce them suo motu and factor them into the pleaded punitive damages head.

Applying settled principles on appellate interference with damages, the court found basis for interference: the trial judge factored in unpleaded exemplary damages and an element of loss of earnings which fell into the category of special damages requiring specific pleading and proof, having been discounted in the judgment. Considering comparable awards and the circumstances that no rent was outstanding and the deposit was held, KShs.500,000.00 was sufficient compensation.

The tenancy agreement permitted re-entry only upon proven rent arrears of two months, but rent was fully paid up to 31st January 2015 and February's rent was not yet due. Section 75 of the Land Act required at least thirty days' notice before re-entry, which was not served. The counterclaim failed because the repair claims were unproven (no receipts, inconsistent figures, unsigned estimate by an unverified architect) and no rent or electricity bills were outstanding.